Novel Constitutions

THE NOVEL CONSTITUTIONS OF LEO THE WISE

NOVEL CONSTITUTIONS OF THE EMPEROR LEO AUGUSTUS OR CORRECTIVE PURGATIONS OF THE LAWS

PROOEMIUM

^A The vicissitude of human affairs and the inconstant and multiform state of life, [with] many and…

^A various laws, provided the means for these to have come into being; laws which, because they extend themselves alongside the multitude of things, discern—by laying them out alongside one another—whatever exists correctly and whatever does not. They are, therefore, as it were, certain guardians of our life and physicians, partly forbidding evils from entering into life at all, and partly, when they have entered secretly and crept in, correcting the harm [they cause], and, as it were, pruning away the vice and not allowing it to grow strong. But, the human course and the reflux of affairs, which twists and turns everything [about] upwards and downwards, and translates much that was well-constituted into a bad state, and causes forgetfulness of many things, so that even if they had not been seen from the beginning to have obtained their existence and are [now] unknown, it has brought no small harm to these—partly by hiding them in deep silence, partly by causing them to speak against one another—this [happens] because those very [lawgivers] who established them did not remain in their former intentions but spoke against themselves, and because of those who came later, where they opposed them either by custom or by decree, so that from this there resulted a great confusion for the laws, and no small damage to ^B affairs, as some were transplanted against others and according to haphazard… [NOTAE]

Proœmium

^C [The discussion of Basilicon, Balsamon, Photios, and others follows here, as the source text is a historical and critical apparatus.] [index: entries preserved]

[Summary of the Latin textual notes:] the Basilica were a new work of 60 books; they contain the laws of the emperors and are a selection. Regarding the *Procanon* or *Nomocanon* of Photius, and the additions by later hands like Romanus Lecapenus and Constantinus Harmenopulus. Balsamon, the interpreter of Photius, was a deacon of the Great Church of Constantinople, nomophylax, chartophylax, prefect of the Blachernae, and Patriarch of Antioch and the whole ^D East. Leunclavius notes his *Ecloga* was prone to many errors. As for the Novels of Leo, they were likely edited after the books of the Basilica, just as the Novels of Justinian were issued after the Code.

...nor that slight injury should befall the affairs of mortals, while they are changed one with another, and are tossed hither and thither at random like dice. ^A Therefore, judging it unworthy that those things, from the peaceful and undisturbed state of which the salvation of the republic depends, should be involved in such confusion and disturbance, we have deigned to examine the laws with the most accurate inspection and consideration; and such as we perceived would be conducive to obtain, these we have selected, and by a written decree of our imperial majesty have confirmed their authority in the republic: and we also ordained that they should settle controversies: but those which we judged useless, some of these we have cast into perpetual silence, and by our decree have ordered them to be banished from the honor and order of the laws: but those of which we have made no mention at all, these also, by the very fact that we have not mentioned them, we have cast into exile just like the others. Finally, since we have seen that among the received customs some are not destitute of reason, and are such as any prudent person would not despise, we have honored these also with the prerogative of law, and have raised them from the status of unwritten custom to the command and honor of law.

^B When, therefore, these things have been thus arranged by us, let everyone know that such laws as have obtained authority through the written decree of our imperial majesty, or such customs as have been honored with the dignity of law, these shall prevail in the republic, and shall hold controversies depending upon them; but those which turn in opposition to them, or to which we have imposed eternal silence by mention, or even without this, have been deemed worthy of the same consideration as those despised, these indeed shall henceforth be rejected and shall be exiles and outcasts from the republic.

CONSTITUTION I

In the name of Him who brought salutary laws to the whole human race, Christ our true God, Emperor Caesar Flavius Leo, pious, fortunate, renowned, victor, triumpher, at all times venerable, Augustus, faithful king, to Stylianus, most illustrious master of our sacred offices.

^C That most celebrated among emperors, Justinian, being of the best mind towards the republic, and most studious of its advantages, as if taking a certain forest, the constitutions in the Roman ^D [Greek text fragment: ...as if taking a certain forest, the original (materials) from the beginning and down to his own time through various periods...]

[index: entries preserved]

constitutions in the Roman Empire from the beginning and down to his own time through various periods, in order to deserve well of his subjects, he attempted with his own industry and labors to create a work worthy of admiration, namely, the incorporation of all the laws ^A, with the greatest concentration. If anything contrary or inconvenient appeared, he purged it; and whatever he believed would result in a stable and proper state of the republic, he wove these things into one, and shaped them as if into a kind of art, and placed and established them as if in a single scale of justice, by which the just might be discerned from the diverse and unjust. But that which (as is established) is everywhere most beautiful is that "nothing be in excess." For since he had, with such great praise, ^B joined together into one body the substance and matter of the laws, which had been divided into many parts, and furthermore had reduced to harmony those things which frequently undermined the order and convenience of legal administration, and had thus compelled judges to a single consensus so that all judgments would have to be rendered according to these alone, and had reconciled them to judging peacefully, with legal chapters established in a state of tranquility and free from all contention: not content with this, but thinking later to accomplish something more excellent for the sake of the republic, he unwittingly overturned his first work with the things he subsequently established; nor did he make the second exempt from criticism, since, from his later institution, not a few contradictions and controversies were aroused against the earlier one. And in this very way, Justinian himself suffered a defect from his own self. ^C Certainly, since even to this day, by reason of more recent sanctions, and now by those things that are unwritten and carry authority from no other source than that they please the multitude, very many things have been innovated since that time, there is little lacking for the legal situation to be totally disordered and confused, and for the affairs of common life to be carried ^D up and down in a leap. Therefore, since if anything else is needed, this certainly is worthy to be obtained through our helpful industry and care: having also diligently examined the customs that had come to govern affairs, we have removed the contradiction between the laws, abrogating the legal authority of whatever was adversarial and illicit according to the present constitution and reason of things; but as for whatever customs seemed not to make regulations for things badly or harmfully, we have allowed these to remain no longer as unwritten and neglected customs, but have raised them to the force and power of law; in some places, however,

and looking toward a certain cruelty and obstinacy, and as a law utterly oblivious of justice, we have restrained it with the moderation due to the laws ^A (19).

Having therefore disposed and settled these matters in this way, we command all those to whom the scales of justice are committed, both magistrates and judges, that those laws which have been ordered by our imperial majesty to be banished from the legal ground, judging them useless, they allow to be cast aside for all time: but that they provide judgments for controversies in accordance with the other written and ancient laws, and those which were not long ago selected or enacted by our father (20) of everlasting memory, and now by us; and that no one henceforth be permitted to turn to any form of law cast out by legal authority, nor to resort to any custom whatsoever which, although accepted as a prerogative because it was called a custom, has not been raised by our power to the majesty and honor of the law.

CONSTITUTION II.

Otherwise.

The same emperor to Stephen, most holy archbishop of Constantinople and ecumenical patriarch.

Since the most holy and divine canons, and any others that have ordained anything concerning the priesthood and the creation of bishops, have been set forth in the best manner and one full in all respects (and indeed, how should they not have been set forth exactly and perfectly, since divine inspiration worked effectively in their authors?), it occurs to me to wonder how some were not afraid to abrogate the sacred and divine laws by promulgating other laws, as if those [canons] were not absolute. For ^C whereas the sacred canons (22), in the places where they legislate regarding the creation of bishops, decree that he who has children from a legitimate marriage, provided there is no other impediment in the rest of his life, can be promoted to the chief priesthood; these men, decreeing the contrary (24), say that those who have children, even if they are the fruit of a legitimate marriage, are not free from impediment in attaining the episcopal dignity. And they perhaps brought this into their minds because they supposed (25) that by such an affection ^D the one being ordained would be corrupted in his sacred duties. But the reasoning is not good. For in this way, even of brothers or kinsmen—

630 [GREEK COLUMN] νῶν ἑτέρων προσόντων οὐχ ἕξει τις χώραν πρὸς ἐπισκόπου χειροτονίαν· ἡ γὰρ συγγενὴς διάθεσις καὶ πρὸς τούτους ὁρᾷ. Ἀλλὰ προειδότες τοῦτο οἱ θεῖοι κανόνες ἔδοσαν τοῖς ἐπισκόποις ἐξουσίαν, εἰ συγγενεῖς εἶεν ἄποροι, ἐκ τῆς ἱερᾶς ὑπάρξεως τούτων παραμυθεῖσθαι τὴν ἀπορίαν.

Ἡ οὖν ἐκ Θεοῦ βασιλεία ἡμῶν τοῦτο ἀρμοδιώτερον κατανοοῦσα τοῖς θείοις ἔπεσθαι ἐντάλμασι, σύμφωνον ἐκείνοις ἐκφέρει νόμον, ὥσπερ αὐτοῖς δοκεῖ τὸ πρὸς ἀρχιερωσύνην ἀνάγεσθαι τὸν ἄξιον τῆς τιμῆς κἂν ὦσι γοναὶ νόμῳ τετιμημέναι, οὕτως ὁρίζουσα τὸν ἀντιφθέγγεσθαι θρασυνθέντα νόμους δίκην τῆς θρασύτητος τὴν εἰς τὸν ἔπειτα χρόνον διηνεκῇ ἀφωνίαν εἰσπράττεσθαι.

ΔΙΑΤΑΞΙΣ Γ'.

Ἄλλως.

Καλῶς ἐξ ἀρχῆς τὰ περὶ τῶν ἱερᾶσθαι ἀξιωθέντων τῆς ἐκκλησιαστικῆς τάξεως ὁρισαμένης, οὐκ ὀρθῶς κατά γε ἐμὲ τῇ νῦν κρατούσῃ ἑπόμενοί συνηθείᾳ ἐνίοτε κατολιγωροῦσι τοῦ ἱερατικοῦ παραγγέλματος. Καὶ γὰρ ἐκείνου προστάσσοντος τοῖς μέλλοσσι παραγγέλλειν εἰς ἱερέας, εἴτε διὰ βίου παντός, εἰ πεθαῤῥήκασι τὴν ἐπαγγελίαν μὴ ψεύσασθαι, ἀγαμίαν ἐπαγγείλασθαι, ἢ εἰ μὴ τοῦτο δυνατὸν αὐτοῖς φαίνεται, νομίμοις γάμοις ἀρμόζεσθαι καὶ οὕτω τῆς θείας λειτουργίας ἀντιλαμβάνεσθαι· ἡ ἐπὶ τοῦ παρόντος κρατοῦσα συνήθεια τοῖς πρὸς γάμον συνάπτεσθαι λογισμὸν ἔχουσι δίδωσιν εἰς ἱερέας πρὸ τῆς μνηστείας τελεῖν, εἶτα μέχρις ἐτῶν δύο τῷ βουλομένῳ γήμασθαι περαίνειν ὁρίζει τὸ βούλημα.

Τοῦτο τοίνυν ἐπεὶ μὴ πρέπον ὁρῶμεν, κελεύομεν κατὰ τὸ ἄνωθεν καὶ ἀρχαῖον τῆς Ἐκκλησίας διάταγμα τὰς χειροτονίας προβαίνειν. Οὐδὲ γὰρ ἄξιον, τοὺς

[LATIN COLUMN] ^A of others present, one will have no room for ordination as bishop; for the kinship disposition looks also toward these. But the divine canons, foreseeing this, gave the bishops authority, if their kin were destitute, to relieve their poverty from the sacred property.

Our imperial majesty, therefore, which is from God, perceiving that it better befits us to follow divine mandates, brings forth a law in harmony with them, just as it seems right to them that he who is worthy of the honor be led to the high priesthood even if he has children honored by law, so it decrees that the one who has dared to speak against the laws, by way of punishment for his audacity, be required to pay with perpetual silence for the time to come. ^B

CONSTITUTION III.

Otherwise.

Since the ecclesiastical order rightly and from the beginning defined matters concerning those deemed worthy to perform sacred duties, it is not rightly (in my judgment) that those who follow the custom prevailing at present sometimes disregard the priestly mandate. For when that mandate directs those who are about to be ordained as priests, ^C if they are confident that they will not prove false to the profession, to profess celibacy for their whole life, or if this seems impossible to them, to be joined in lawful marriage and thus to take up the divine ministry, the custom prevailing at present allows those who have a mind to enter into marriage to perform [the ceremony] for priests before the betrothal, and then it sets a limit of two years for the one wishing to marry to fulfill his intention.

Since we see that this is not fitting, we command that the ordinations proceed according to the ancient and original ordinance of the Church. For it is not worthy that those ^D

for it is fitting that those who have been lifted up by spiritual ascent above the abjection and filth of the body should not fall back into the filth of the flesh ^A, but rather that, by an opposite movement, the divine ministry should ascend from bodily abjection as if to a higher degree; this would be more fitting.

CONSTITUTION IV

It was decided by the ancients that the sacrifices and communions which take place in private houses should be celebrated only by those priests who belong to the general churches, and that by others, who are attached to some other sacred building and are in a private state of life, no office or sacrifice should be performed. And indeed, it seems that this was conceived by them for the sake of preserving religion, so that—as one may conjecture—while some hide the lethal evil of apostasy under the pretext of the priesthood, it might not happen that those who participate in a profaned sacrifice are far more contaminated than purified. ^B Indeed, the end proposed by those who devised such a religious precaution, in that they invented it for the establishment of the most holy faith, is at once laudable and worthy of commendation. Nevertheless, as for the extent to which they believed they were bringing stability, you will not see that it has flowed from the law and extended itself to that degree. On the contrary, it is seen at times that the very same law opposes those who devote themselves to religious and divine ministries. For that a polluted priest, who is not known, should make someone a participant in his own defilement, it is perhaps ^C likely to happen at some time: but not so that such a thing always and entirely happens. For who is so easy in mind, and who holds everything so mixed, that he would call upon a priest to perform a sacrifice whom he does not know, nor know of what religion he is, nor of what character? Again, those who devise apostasy and perform priestly functions impiously would not want to assemble with those who are alien to their impiety; so that where the law seems to provide security, it does not do so as was thought. Moreover, for the pious it is found to be a hindrance to many benefits. For by divine grace, ^D with prayer houses having been erected to God in almost every home, not only of the more illustrious, but also of the more humble,

regarding the provision and care of priests, as it cannot be done equally well by all, it happens because of the law that those who are, as I said, poorer, and unable to provide for the private support of priests, remain very often destitute of the divine mysteries, and the holy shrines are deprived of the sanctifications that ought to be performed in them. But it is also likely that when a memorial [service] is at hand, for want of a priest, the day of memory passes by unhallowed, so that from this no small loss results for both those who live here and those whom the other life holds. We therefore decree that not only the priests of each catholic Church, but also those belonging to any other house of priests, shall have the freedom to pray and celebrate the mysteries in all houses, as those who preside over each house may choose to invite them, and to give them access and priestly function in the holy oratories. ^B

CONSTITUTION V

Otherwise. That a monk may make a testament regarding things acquired.

The same Emperor to Stephen, most holy archbishop of Constantinople and universal patriarch.

Since concerning the property of monks, which they have amassed after adopting the monastic life, oftentimes with Thee and with the God-beloved high priests under Thee, O divine light, who in the great firmament of the Church shine forth to the world by the first light, ^D we have been in doubt…

^A regarding whether it is necessary for monks to be appointed lords of such goods, or whether it is fitting to restrain them from the ownership of them; forasmuch as that which, like a cloud, arises from thence, this ambiguity, encroaches upon and obscures the rays of reason, so that the matter cannot be clearly judged: since, therefore, you have urged us, who are in doubt regarding this, with various petitions to undertake the consideration of this matter together with you, we—revering your priestly dignity in this instance just as in other matters—set ourselves to the satisfaction of your petition.

And let those things first be said by us ^B which were decreed by the ancients (37) regarding those who desire to be enrolled in the monastic commonwealth: namely, that they must first make a testament regarding their own property, and only then proceed to the desired mode of life, and that the disposition of their property must not be anticipated by the change of life. For if it be established that this has happened, it is no longer permitted to them, now that they have been tonsured, to determine anything concerning their property; and all the substance, in the church where they were tonsured, shall pass to it. Which decree, indeed, concerning those who have already entered upon the monastic life (except if children remain who seek their inheritance), is ordained as both excellent and as one than which no one could establish anything better; then neither can anything be added to it nor taken away from it. For even he who, before changing his mode of life, had the management of his property ^C lying in his own discretion, if he has not willed to carry this out, is deservedly prohibited from the stewardship thereafter, having brought this situation upon himself; for he reasonably bears the subsequent deprivation of power which he himself votes for by the very fact that he did not will to dispose of his affairs when it was permitted to him.

But otherwise, how would it not be absurd for one who has separated himself from the cares of this life still to bear the burden of such cares, and to be pressed down by the trouble arising from thence? Therefore, if he who has been enrolled in the number of monks (as I have said) has no children, this decree does not yield to another decree. But if there are children ^D (for it would not be right/lawful that they be afflicted with loss because of the parent's silence), the monastic habit does not wholly impede the arrangement of a testament; but it is manifest that he will be able to make a testament regarding the portions of the children, which shall be attributed to them by an equal and lawful division. But the part which relates to himself, in this the making of a testament shall fail, since that which is entire shall belong to the monastery. But if death also (as are many the accidents of human affairs) suddenly supervening should intercept the distribution of the property, not even then does that which might provide aid to the children...

^A be totally silenced; but according to the stated mode, those things which pertain to them by legitimate right shall be separated; the remainder, however, shall fall to the monastery. And these things indeed relate to those properties which anyone might have had before undertaking the monastic life. Regarding, however, that matter concerning which your paternal beatitude petitioned for a decree to be issued (namely, regarding those things which have accrued after the reception of the monastic life), we decree this: that from that time, from when he undertook the regimen of the monastic life, upon consideration, those things which were afterward acquired by him shall be discerned. For it is not the case that because he who passes from a profane life to the monastic one ^B, unless he makes a will beforehand, is deprived of the faculty of making a will afterward, that he is therefore prohibited from decreeing anything generally concerning those things which he has acquired subsequently. In the former case, indeed, he is justly deprived of the power, because while he was still acting as a layman, he could have made a complete settlement, and by the very fact that he did not do so, he closed himself into [(40)] straits; here, however, there is nothing similar, such that anyone should be prevented either by himself or by another. But if anyone should say that for this reason alone, because he is a monk, the monastery will take everything, I do not know if such a person legislates things that are fitting for monks. First, indeed, if men who have pledged their contempt for worldly goods ought thus to cling to them. Then, if there are poor relatives or otherwise acquaintances of the man in need of an assisting hand, how is it not alien to all humanity that they should not be deemed worthy of any relief from the relative's goods, as if those who lead the monastic life ought not to exercise the removal of strangers, but rather the removal of relatives and friends, and draw everything to themselves, ^C just as we see those gluttons and voracious men who do not wish to leave any portion at all to others who recline with them? For neither is a slave liberated from the bonds of servitude, nor does the needy obtain compassion, nor does any other person pressed by necessities find the fruit of consolation, when all the monk’s faculties are given to the monastery.

Accordingly, we decree that if, at the time when the man chose the monastic life, he consecrated something to the Church, his judgment regarding things subsequently acquired shall be free and valid, whatever he may wish to decree concerning them; but if nothing at all was brought into the monastery at the beginning, then the property shall be divided into two parts, so that one part is comprised in two-thirds, and the other is limited to a third, and the monk may settle by will ^D as he pleases concerning the two-third portion, while the third portion is assigned to the monastery. And these are the things which our power has decreed regarding the matters requested. It will, however, be necessary for your beatitude to make manifest the things decreed to all the most God-beloved metropolitans under you, and for them likewise to those bishops under them, and for them to those [whose...]

to those who have been allotted the care of churches, to indicate these things, so that both at present and in the future these may be known by all and practiced in this manner.

CONSTITUTION VI

[...the power to dispose of his own affairs, but shall be restrained from administering his property until that time arrives when he reaches the legitimate and full age to make a will. But if (such is the human condition) he departs this life before the completion of that time, all his slaves shall be freed from servitude; as for the rest of his goods, let them be divided into two parts, into two-thirds and one-third, and let the monastery receive the two-thirds, while the one-third is given to the relatives of the deceased. If none of these survive, let the one-third go to the same place as the two-thirds. ^A

CONSTITUTION VII.

That as often as anyone should attempt through madness to pass from the clerical habit to the lay, he shall be restored to it even against his will.

Aliter.

That a cleric shall not again become a layman.

The same Emperor to Stephen, most holy Archbishop of Constantinople and Ecumenical Patriarch.

Just as previously, when we were investigating a more certain and firm ^B arrangement of affairs, if the civil law seemed to provide greater strength and firmness to matters than the ecclesiastical law, we gave preference to it, so here, too, seeing that the sacred decree is more conducive to the good order of affairs than the civil decree, we provide it with our consent in a harmonious prescription. And we decree, according to the rule of the Church, that whoever has been mad enough to change the clerical habit for the lay, as often as he may be moved to such madness, he shall be restored to the clerical habit according to the ecclesiastical ^C decree, even against his will; even if he is not worthy to receive the rank of the ecclesiastical order, as one who has rendered himself unworthy of such a rank by his act of desertion.

CONSTITUTION VIII.

That he who has made up his mind to reject the venerable habit of the monastic life and has taken up the lay habit instead, as often as he shall have dared to do this, shall be restored to it even against his will, and shall be returned to the monastery from which he wickedly fled.

Aliter.

Concerning him who deserts the monastic life, who is accustomed to be enrolled in the auxiliary cohorts. ^D

The Same Emperor to Stephen, Most Holy Archbishop of Constantinople and Ecumenical Patriarch

^AWhereas for those who choose to live in a disorderly fashion and prefer a base life to a praiseworthy one, whenever they are caught committing any wicked act, their evil purpose is restrained in various ways, and their depraved and impious will and impulse are not permitted to go unpunished; I marvel how the ancient law, regarding those who have entered into the struggle of the monastic life and then have deserted, turning back like dogs (as the Holy Scriptures say) to their own vomit or like swine to the mire of their former life, and placing themselves in the habit and rank of laymen, could have allowed such an impious undertaking to be carried out at all. For it commands that those who have once abandoned ^B the monastic life should return to the place from which they wickedly departed; but for those who have dared to do this a second time, it commands that they be expelled from the monastic state and from that time forth be enrolled among the guards of the provincial order. Yet if it seemed good to him to decree this in such a way—that the deserter should be clothed in the layman's habit—why did he not clothe him as such from the beginning? Why, instead, does he decree that he who has once renounced his own profession must be driven back to the monastic life even against his will? And if he thought it proper to command it thus, why does he not abide by that judgment, but instead, as if repenting of his own decision, drag that miserable monk into military service? ^C But this appears to us by no means right, nor does it please us that one who has been received into the legions of the divine militia should be placed in worldly militias. On the contrary, that which seemed good to be observed by the ecclesiastical order—that if anyone frequently despises the monastic life and wanders about, he should not be permitted to adopt the lay habit—this we also command by law. For if one who sheds the monastic life does so driven by the impulse of worldly pleasure, what reason is there—even if he be checked once by the impetus of his desire—why, if he again applies his mind to doing this, knowing that he will bring his arrogant intention to its end and that he will be received into the state of laymen, he should not by every means ^D change his monastic way of life for the common manner of living once again?

CONSTITUTION IX. Regarding a slave who has become a cleric without the knowledge of his master.

The same emperor to Stephen, most holy and ecumenical archbishop of Constantinople.

Following the same concern for the good order of ecclesiastical affairs, and adding our own approval to those things which have pleased the sacred canons, we demand from the civil laws that oppose them the penalty for such contradiction, so that they may be removed from the legal constitutions. For we establish, in accordance with the will of God’s Church, that anyone who, while of servile condition, took upon himself the venerable dignity of the priesthood without the knowledge of his master, should be stripped of the honor proceeding from that, and be restored to the former state of servitude. Furthermore, we render ^A of no effect and without standing that law which frees from servitude a slave who has been made a priest without the knowledge of his master.

CONSTITUTION X. Regarding a slave who has taken up monasticism without the knowledge of his master.

The same emperor to Stephen, most holy archbishop of Constantinople and ecumenical patriarch.

We ourselves know how excellent the profession of the monastic life is, and what reverence and honor those who take upon themselves that sweet and blessed yoke deserve. Therefore, it is not to disparage it, but rather to exempt it from disparagement, that it seemed good to us to enact and decree these things. For the more ^B wonderful and divine that life is, with all the greater reverence must it be approached; it should by no means be made a veil and pretext for ingratitude and wickedness. And indeed, how is it not to be called wickedness, if a slave, fleeing his own master, arrives at that way of life? Since, therefore, it has been ordained by our predecessors regarding fugitive slaves coming to the monastic life that, if the fugitive is discovered within three years, the master has the power to strip him of the habit and take him back; but if he remains unknown until the third year, even if he is recognized afterward, he is not subject to the master’s power, ^C but is called free against the master’s will. And since we see that many have taken from this an occasion to flee their masters, and to use an honest matter as a ^D pretext for freedom—regardless of how much time they have hidden in the monastery...

from the profession of the monastic life to cover their wickedness (for it is very easy for any servant who wishes to do so to hide himself for three years, and then lay claim to freedom).

We command that, however long a servant may have hidden himself after having adopted the monastic habit with such a design, if his master should find him at any time, he shall nevertheless be stripped of this habit, which he assumed with evil intent ^A, and shall be brought back under his master's authority. For it cannot be said that he assumed it with a pious disposition, even if he himself pretends to say so. For if he was treated well by a kind and gentle master, and in return for love conceived hatred and decided to flee, you have proof of the extreme ingratitude and wickedness; or if (as human affairs go) he was afflicted by some difficulties and mistreatment and did not endure them, and for that reason abandoned his master, how will he respect that commonwealth which desires its citizens to look constantly toward the cross and death of Christ? ^B

CONSTITUTION XI. Concerning a slave who became a bishop without his master's knowledge.

The same emperor to Stephen, most holy archbishop of Constantinople and universal patriarch.

Whatever we have ordained regarding the slave who has stolen the venerable dignity of the priesthood, we also decree concerning those slaves who, without the master's knowledge, have seen fit to ascend to the honors of the high priesthood: namely, that according to the will of the ecclesiastical constitution, they shall be deposed from the honor into which they have secretly crept, and shall be reduced to their own servile status. ^C For we certainly do not allow those who steal something else by theft or fraud not only to retain what they have stolen, but we sometimes even punish them as criminals; and shall we allow those who dare to steal such great things to live honestly from that theft, and from one most wicked exercise of fraud to gain two of the most precious things of all, freedom and the prerogative of the priesthood?

Therefore, if any slave has been ordained bishop without the knowledge of his own master, he shall receive no assistance from such an ordination toward escaping slavery.

CONSTITUTION XII. Concerning the use of the workshops of the Great Church.

The same emperor to Stephen, most holy archbishop of Constantinople and universal patriarch.

Constantine, he who was the first to [honor] the name of Christ... ^D

having rendered the crown of his empire more splendid and august than his other achievements, and having also duly looked to that which was worthy of his imperial care regarding the burial of those among the dead whom poverty constrained even in this matter, he assigned workshops to the holy Church of God, from the revenues of which he arranged that the necessary expenses for burying the dead should be provided. But when the zeal of pious men subsequently succeeded to this provision, which itself sufficed to provide for the poor in their burial, it greatly increased the funds for this purpose. But now you see that nothing at all is being dispensed from there with the care with which that thrice-blessed prince at the beginning wished it to be done.

At us, knowing indeed that after the Church occupied the revenues of the workshops (even if it does not expend them upon that for which it was ordained from the beginning, namely the worship of God) it absolutely dispenses them for some other ministry, even one that pertains to the worship of God; we decree that the constitution ^B already issued of old concerning these things shall remain immobile and inviolate. Moreover, the number of all the workshops that have been assigned to this ministry is eleven hundred.

CONSTITUTION XIII.

Of perpetual emphyteuses.

It has been brought to our ears that a fraudulent and illicit practice is dared by those who have been chosen to preside over houses consecrated to God (I refer to churches, hospices, houses destined for the maintenance of widows and orphans). For they have said that when buildings are leased out, and the time agreed upon by contract is already running its course, and the end of the lease and the renewal of possession is at hand, no certain and fixed payment is made—which they call by the peculiar name of *eisdecktikon*—but rather, as it may appear to the greed of those who have been chosen to preside, in such a way are the possessors of the houses burdened by such exactions.

This, therefore, being grievous to all, and ^C as we perceive, especially becoming more grievous to the poorer sort (because such a harder necessity of poverty is imposed upon them), we... ^D

seeing that it is most bitter, we forbid by law that it happens further: but that the payment be defined in a certain quantity limited to double the emphyteutic rent, with the whole contribution being clearly inscribed in the documents of the concession and brought to the house without innovation, and not, as is done, turned inside out for the gain of the prefects, while they, not looking out for the utility of the houses, but wickedly procuring profit for themselves, make this the subject of impious gain ^A and not the utility of the houses.

CONSTITUITION XIV

The rashness and contentiousness of the mind ^B towards an effort that overpowers one's strength is equally blameworthy and unacceptable, whether the undertaking has evident malice or approaches while projecting an appearance of gentleness. This, our Lord and Savior in the Gospels wishes, by uttering parables and problems from the beginning, in which He discourses about the building and completion of a city and similar things. Justly, therefore, do both the sacred laws and the political decree release harmonious commands, that those who are not capable of the completion of the work, yet lay hands on the construction of a monastery, be restrained from the undertaking. For it is necessary that things, whatever they may be, reach perfection and thus be applied their proper calling; but it does not suffice that the name alone provide stability ^C to the incompleteness of things. What has therefore been said, both the sacred and the political law rightly forbid: namely, that those who are not self-sufficient for the completion of the thing should attempt to build a monastery. Since, however, that remains unknown—namely, up to what point the sufficient completion for the construction of monasteries [is reached] (for such completion is not expressly defined by them)—it seemed well to declare a clear decree concerning this.

We say, therefore, since the divine ^D mouth has spoken: "Where two or three are gathered in my name, there am I in the midst of them," that it is fitting for the work that takes on the name of a monastery to have at minimum three [monks] suffice: which indeed, if the work is also abundantly equipped with resources, is also valid for the celebrity of the name. So that someone may have a free and unimpeded aggression toward dedicating a monastery, it shall have been necessary to conceive the dedication for at least this many monks. Moreover, because very many, who give themselves to an initial attempt of this nature, sometimes fall behind their design, with death preceding them and their intercourse among men

^A vanished by premature death, and snatching them away from the association of men, they are sometimes left without a proposal: it is decreed by us that if a testament has been drawn up, that which has been assigned to the church in it shall fall to it. But if (as happens repeatedly due to the uncertainty of death) he has been carried off before he could decide about his affairs, then if three in number children survive, the monastery shall receive a fourth part of the goods: but if the multitude of the offspring proceeds beyond the number of three, the monastery shall be counted with the children, and after the deduction of debt, it shall receive as much from the whole substance as each one of them receives. But if the deceased has died without children, but has surviving parents, the things being divided into two parts, one part shall be applied to the parents, and the other to the monastery. But if he has neither parents nor children as heirs, and relatives come forward to the inheritance, they themselves, however many they may be, shall distribute a third part among themselves, and the two remaining parts shall go ^B to the church. If, however, either through forgetfulness or for some other reason, the things decreed are opposed to a lawful intention, we decree that the God-beloved bishop of the place concerned, whenever he is sufficient for the administration of the church and of those who are to preside in it, shall take charge, and for the rest, he shall interpret the will and ordinance of the laws.

Constitution 15. That it be permitted for saving baptism to be performed in any sacred oratory.

The same emperor to Stephen, the most holy archbishop of Constantinople and universal patriarch.

Even here, the holy canon of the venerable sixth synod, which does not wish the divine bath of regeneration to be performed in the oratories of private houses separately, but only in temples consecrated for common use, ^C since it commands things similar to those who forbid the performing of holy sacrifices and mysteries in private houses, and has therefore long since been more carefully considered by us: it shall meet with a similar correction as those have.

We decree, therefore, that just as it is regarding sacrifices, so also it is regarding the saving baptism, that it be permitted for anyone who wishes to perform it in any sacred oratory. For this decree of the holy synod seems to me to have been established so strictly because of those who, although they bear the name of priests, are nonetheless profane, and render those whom they bring to the bath defiled: ^D who, as it appears, entering the houses of men of the same persuasion, do not perform the matter

divine, but when they unite with those who are inauspicious, they devise something. Although this provision is acknowledged to be divine and to contain many beneficial elements, it is not sufficient to restrain those who are full of impiety from their own vices. For wickedness is a daring thing, and in every way it will find its own path, even when oratories are closed, to fulfill its own purpose. Nevertheless, since now by divine grace all perverse opinions have been cast out, even as far as this matter is concerned, therefore I see no necessary cause for this decree to be thrust upon the republic to prohibit the bath of regeneration in the oratories of private houses. ^A

CONSTITUTION XVI.

That he who has twenty (6) years may be created a subdeacon

Therefore, our imperial majesty, considering it right to hear the sacred law prescribing about its own matters, descends into the same opinion with it, and establishes that he who has reached the twentieth year, provided that the account of his past life is no obstacle, should not be hindered from undertaking the office of subdeacon, as far as age is concerned. ^C

CONSTITUTION XVII.

Concerning women after childbirth, when they may become participants of the divine mysteries, and when infants are to be baptized, that is, after forty days, unless necessity calls for it.

of one who has recently given birth and is in childbirth, when she is seized by death standing at the doors, and does not await the interval they themselves suppose must be awaited (I mean, the fortieth day after the cessation of the birth pains), but death snatching her sooner; and through physical uncleanness they ensure that she departs from human life truly unclean, being uninitiated and partaking not in the purification and regeneration of the divine bath. They do not think of the magnitude of the danger and the loss that the lack of reverence and the recklessness of their own piety causes. And yet, because of its enormity, such an absurdity does not even need argument. For how is it lawful or pleasing to God—who through faith in him and through the regeneration in water and spirit grants salvation—that a woman should depart an unbeliever and bereft of restoration, and instead of being ranked among the saved, should be cast ^B into the place of the lost, for the sake of such a pretext?

Vanam igitur, ^C Therefore, banishing such empty-mindedness from now and for all future time, we decree concerning women who have given birth, and those who are occupied with their natural purification, provided their life is not held fast by any other morbid condition, that they remain apart until the predetermined period of forty days, not yet initiated into the illumination, and, if initiated, from the reception of the most holy mysteries; but if any sickness should supervene and weigh upon them that threatens the ending of their life, they are to be made partakers of the holy things in every way. For if for those who, on account of enormous transgressions, are kept away from the life-giving communion for many years, when death impends, it interrupts the prescribed waiting period, and no one dares to prevent them from participation in the holy things, by what reason shall these be forbidden on account of natural fleshly impurities? Which, I believe, was forbidden by the old law and the tradition received by grace, not so much because of this feminine uncleanness, as for other causes hidden in the depths of the legislation. For I judge that this decree was ordained to chastise the unbridled desire of those who live intemperately, ^D just as many other things are ordered through other means.

and many other things are ordained and prescribed by other precepts, by which the indomitable stimulus of some men toward women might be blunted. Nay, this is also the will of the Providence that established the Law, so that births may be free from depravity. For since whatever is superfluous to nature is likewise corruptive and useless, and because this blood is superfluous, the Law commands those who are subject to it to live in impurity until that time; so that by the very sound of the name, lascivious concupiscence may be brought back to temperance, lest the living creature be fashioned from useless and corrupt material.

^B And indeed, regarding infants, we constitute the same procedure: if they are not troubled and overcome the mishaps that are hostile to nature, the fortieth day is to be awaited before they are illumined by the splendor of grace. For it is consistent that, just as a fetus is fully formed in forty days within the maternal receptacle of nature, so too should the newborn proceed in an equal number of days to the house of divine glory and of the eternal Father of all. Yet if anyone wishes to baptize on the eighth day from the birth, that shall not be absurd. For our Lord Christ, having been circumcised on that day and having set an end to circumcision, granted instead that one be initiated into this life-giving baptism. But these things shall hold good if no necessity exists that threatens death; if any sudden danger threatens life, it must be performed with all diligence and strength even within the eighth day, lest the newborn die unilluminated and lacking the sacred bath, and thus bereft of the supreme good.

CONSTITUTION XVIII.

That the penalty for betrothals be exacted.

The same Emperor to Stylianus, most excellent Master of the Sacred Offices.

In all things, both actions and words, it is not to be reproved that the better course be chosen. And even then, that you should deem something to be followed or avoided, it is not the persons of those doing or saying something that should be taken into account; rather, the state of the things being done or said ought to be understood. Therefore, it has pleased that customs—such as the imposition of penalties in the dissolution of betrothals upon those who would initiate such a dissolution—should be established with the authority of law. ^D For I consider that what has seemed good to custom is not less reasonable than the law that was previously enacted concerning such matters, but rather that it improves the situation. For while the law punishes only by the loss of the arrha or its twofold restitution...

that the loss of the earnest money, which is appointed for him who gives it and then does not acquiesce in the betrothal, and its twofold restitution, the penalty which he who received the earnest money suffers if he does not persist in the covenanted agreement, perhaps because of [its] lightness, gives to those who wish [it] an impulse toward breaking their agreements. But by a stipulated agreement of explicit exaction, the unstable person, seeing a heavier loss coming upon him, will certainly be more hesitant to dissolve the betrothal. ^B Indeed, we, seeing that this is more beneficial for marriage contracts, are establishing as a legal ordinance what is done by custom. For from the loss of the earnest money, I see that the overturning of betrothals happens easily; but from the payment of a fine, it does not. For the [penalty being] heavier than the loss (and the fine is certainly heavier than the earnest money), it will compel even the unwilling person, checking the fickleness of his mind, to acquiesce in those things which were previously agreed upon concerning the betrothal. Thus, then, from now on, by the commandment of the law, let what has been confirmed by custom both prevail and be in force, just as it has been until now, and let him who overturns the betrothal be punished by the exaction of a fine.

CONSTITUTION XIX.

Concerning a paternal agreement that the son shall inherit equally

^A (since it desires the contrary of that natural equality of status owed by parents to their children, and opens a door of injustice for the father against the child; and not only that, but it also casts into the guilt of falsehood and deceit the parent who has been led and persuaded by it)—notwithstanding this, because we have noted such a thing—even if, before our decree, the very choice of human nature excluded it from being accepted—we nevertheless strip it of all function and usage by our decree. For what does it say? Even if, it says, a father, while giving a son in marriage, promises by a pact that after his own departure from among men, he will be heir to the paternal property in equal measure with his other brothers, he is still master, if he wishes, to despise such ^B a pact, and to assign more to the other children, and to make smaller the portion of him to whom he granted the pact of an equal share in the inheritance. Therefore, although (as we have said) this has no place in the republic, by our decree we cast it out as if into exile, and we forbid its entry into the commonwealth in every way.

We decree, ^C indeed, that no parent should attempt to innovate upon the rights of children, to whom they have promised in marriage contracts that an equal portion of the inheritance will be preserved as for the remaining children. If anyone is found to have spurned his own pacts, and to have detracted from the portion of him to whom he promised as much as the other brothers are to have, let him know that this will of his, changed out of repentance, is to be held invalid and vain. For the son shall succeed to the goods in equal measure with the other brothers, according to the pact that was entered into. Nor does any reason allow for falsehood to be preferred to truth, nor is it equitable, nor is it fitting for a rational ^D animal that agreements reached by compacts be adulterated through impropriety. And if anything else is proper, this certainly becomes a human being: that he should vouchsafe faith to his own words, unless, by corrupting the truth with lies, he wishes, stripped of reason, to fall from the rank of those things endowed with reason. Furthermore, it is not consistent that parents should not show equal concern for those born equally from them, nor provide equally for their lives, but wish for some to have a more affluent life, while sparing nothing for others, nor pitying them, even if they are in such poverty that they are destined to live in misery. But it is just that, just as they have imparted life equally to all their children, so also they should impart the means of living, and not

as one of unequal mind distributes the belongings of those present.

CONSTITUTION XX

The same emperor to Stylianus, most excellent master of the sacred offices.

Since it seemed good to the ancient laws ^B that treat of marriage contracts, both at the first inception of the marriage and at its dissolution, which death, invading one of the persons, brings about, to assign equality to both man and woman: I do not know by what motive those who subsequently chose to legislate subjected these to unequal provisions. For the older laws ^B immediately ordained at the very inception of the marriage that the contributions, both the woman’s and the man’s, should be equal, and that when one of them had departed this life, in the absence of children and in the absence of a contract ^C in which there was any specification regarding profit, things should return to each party equally; but if a contract concerning profit had been entered into, then, wheresoever death had occurred, the survivor, having recovered his own property, would additionally gain as much as had been comprised in the contract, and in both cases equality of profit was to be maintained: so that if the husband died first, the wife would take away the dowry and some part of the donation propter nuptias, or the whole of it if it had been so agreed, and if the woman had encountered death before her husband, the man would retain the donation propter nuptias, and that profit, whether it be the whole dowry or a part of it, as their agreements dictated, would follow him. But while these things were judged well by the ancients, they displeased the later ones. Therefore, they also legislate to the contrary, though not rightly. For they decree that from the very beginning of the marriage the contributions should proceed unequally, and that the dowry should be greater, but the donation propter nuptias more restricted, and that the wife should become mistress of this from the day on which the marriage was contracted, even if, as is wont to happen, she should commit herself to the consort of another man. And when the marriage was broken by death, they judged iniquitously, as while for the one...

^A they console their grief for the loss of the wife with the gain of their own goods, they augment their grief for the husbands above the loss of their wife with the expenditure of their substance. For they command that the woman surviving should carry off her own dowry and the whole of the marriage gift, and in addition to these, should inherit from the remaining substance of the husband as much as the fourth part of the dowry and marriage gift combined and numbered together. But if the wife should die first, her heirs gain her marriage gift along with the dowry, and the husband has nothing else but the fourth part of the dowry and the marriage gift; and thus the matter proceeds, whether a contract is present or whether they have agreed upon nothing of the kind. How, therefore, are these things not iniquitous? And how, instead of being law, is this not the extreme of lawlessness? For what the woman receives when the husband has died first, perhaps has some reason; but that which, when she has died first, passes to her heirs, how is this not entirely unjust and unlawful? ^B For this reason, very fittingly and wisely, that emperor of ever-memorable memory, seeing this, and he who was born of his loins and ruled after him, decreed that the authority of the ancient laws should be preserved, and that those who perversely ordained anything contrary to them should be thought of as cast out from the state into exile. But stubborn and contentious custom, and frequently some absurd opinion that has struck deep roots in the minds of men—especially those whose care it is not to weigh it with right judgment—cannot easily be extirpated, because men grasp at an anticipated opinion, however frivolous it may be, and are unwilling to follow better things. So that not even now has the constitution of our father of ever-memorable memory, which refers the status of matrimonial agreements back to the ancient laws, persuaded them to relinquish the absurd ordinance, but those things for which he decreed exile are even now in public use. ^C

What then do we say? Since it has once seemed good that there should prevail not equality in the contributions at the start of marriages, but that the dowry should be greater than the marriage gift, let this prevail in the state. If death brings a dissolution to the marriage, if indeed the husband departs childless and no contract is present, let the woman take back her dowry and the marriage gift, and nothing more; but if death should snatch away the woman, let her heirs take the dowry: but let the husband not be deprived of his own affairs, nor let the things that are his be given to others, but let him himself have them. ^D

others, but let him have the benefit. For how is it not unjust that others should profit from his assets, while he, in addition to the loss of his spouse, should also be deprived of his own goods or of the donation propter nuptias? ^A

CONSTITUTION XXI.

Just as we see in a balance that it is then rightly taken for the judging of the things being weighed when the scales are equal and do not incline even the slightest bit to one side, so too, the law, when it does not distort and debase justice even in the slightest, is worthy to proceed to the adjudication of matters. For it is the part of the former to maintain equality, and of the latter to keep justice stable. But to what purpose is this? In the codes, a constitution is written down which, while it demands the promises made by parents who have given their children in marriage, whether in the name of a dowry or of a donation propter nuptias, I know not how it confuses justice. For it wants a father who has promised to a child a dowry or a donation propter nuptias—if he has made this promise indefinitely—to fulfill the whole of it from his own resources and to pay it out entirely from his own estate alone. But if he has made a distinction, saying, "I shall provide the promised things from both my own property and that of the child," then if he is in poverty, it decrees that he contributes nothing to the promise, but that the child’s resources, which the parent promised he would contribute together with the son, alone fulfill the obligation. But if he is wealthy, it is ruled to the contrary: that he alone should fulfill from his own what he promised, and that the son should share nothing with him, even though he had promised that he would fulfill the promise not alone, but along with the son; for it is thought unworthy that the son, who did not promise it himself, should be forced to give anything. We have therefore judged this to be a subversion of equity. For neither is it in accordance with the justice of the law that, in whatever poverty the parent may be held, the son alone should pay the promised things from his own property, nor, again, when there is an abundance of wealth for the father, is it fitting that the son should be entirely exempt from contributing, and that the whole promise should be provided by the parent. Wherefore we also decree ^D that according to the parent’s word...

as the solution of the parent’s words of promise proceeds, and when he has promised that he alone will give it, let the promise be demanded: but when he has promised that he will give it with his son, let the son also be liable for the solution, and let this be done in unequal parts, when those are not defined; and then also from unequal parts, when certain portions have been diversely assigned to each. In this there is no subversion of equity, and furthermore it looks to the utility of the children, which the constitution set forth in the Codes does not greatly care for. Why so? Because a parent, since he looks to his own loss, and therefore waits for that time which facilitates the power of effectively promising for the son, to enter into a nuptial contract which would be advantageous to the son, he loses it. That therefore this matter may be convenient and happy for both, and equity may not be wrapped in an iniquitous judgment, nor indeed may the utility of the children be harmed, let the decree of the Code be set aside: but let this—already known to custom—prevail in the republic. For since it is held in the republic in place of a legal decree, it is now preferred to the constitution which is in the Codes. ^B

CONSTITUTION XXII.

That a woman who does not repeat her marriage may take the portion of one of the children by right of ownership: and likewise the father.

[...], the portions of the husband’s estate lying outside the donation on account of marriage, but rather bestows upon her that portion after having gathered together the whole of his property. ^A Since we do not see this custom to be detrimental to affairs, as we have judged in other matters, we honor it with the dignity of law; and let it henceforth possess the force of law, and not that of custom. If, however, the entire estate of the husband is counted as only belonging to the donation on account of marriage, the mother, living together with his children, will receive the portion pertaining to her in full ownership, and she will have the usufruct of the rest. ^B But if the property is not sufficient for the constitution of the donation on account of marriage, the wife will receive her portion, not according to the quantity of the diminished donation discovered, but possessing as much as she would have had if the donation on account of marriage had been known to be undiminished and full. A portion having been given to the wife in this way, let the remaining parts be for the children; but if nothing is left over, they shall bear the destitution as their inheritance. But these things concern the woman. ^C And the husband, if he is childless (just as has been corrected and ordained in other places), will neither receive nor lose anything; but if he has become a father of children and has not extinguished his longing for his wife by a second marriage, he too shall take the portion of one child, for the sake of the rearing of the children and out of regard for the reverence and honor preserved for him from the first marriage.

CONSTITUTION XXIII

That governors in their provinces should not contract private marriage engagements.

[475] As there are those whose fierce and unjust mind, straying far from the straight path of the commandments, leads them into perverse and tyrannical greed, and causes them to manifest a savage purpose instead of the care appropriate to administration, an ancient law ^A sought to restrain them, establishing that governors should not have the power to enter into contracts or betrothals in their own provinces. And although it had established this principle of law regarding sons, grandsons, and other male relatives, it did not forbid the giving away of daughters. We, therefore, adding this to the excellent legislation as if it were a lacuna, ordain that just as they are forbidden to give their own sons and other male relatives and dependents in marriage in the provinces where they hold office, so too they are forbidden to give their daughters and other persons of the female sex in marriage ^B in those same provinces. For what reason is there why a son, or any other person of the male sex, should be subject to the decree, while a daughter remains free from the observance of the law? Especially since the male sex can frequently be of utility to himself, his spouse, and others whom affinity has joined, in many ways and pursuits. For having perhaps attained honors, or established some trade, or having undertaken some other care for maintaining life, he will be, as I said, neither useless to himself nor to his other relatives. The female sex is generally not suited to undertake these things.

CONSTITUTION XXIV

That natural children shall not contract marriage with adopted ones

The same Emperor to the same Stylianus.

Many, while celebrating ancient times with praise, wish to attribute the primary place to them in ordering and establishing affairs. I know indeed clearly that those times surpass more recent ones in most things; nevertheless, I see that in some things they are surpassed. And while there are not a few matters in which they are exceeded by more recent times, this is seen to occur especially in adoptions: for those ancient adoptions were performed without any decent rite or ceremony, as they performed them without the divine ^D sacrifice and divine chants; and the law permitted that those who wished to be adopted should have this done for them simply. Whence it happened very often that the title of sister passed into that of wife, and the young girl who a short while before was called a daughter, would be transferred into a bridal state, or a son instead of the

be known as a son-in-law, for they would be joined in marital relations, both the natural child and the one whom adoption had placed into the order of children, and nothing was taken into account regarding the act, because, since no sacred rite intervened, no obstacle stood in the way of their matrimonial union. ^A But in olden times, although adoption was not carried out in a becoming manner, and even if such a marriage had something ignoble about it, yet it did not involve anything nefariously against the law; now, however, since adoption is performed according to decent and just precepts, and through a sacred rite, with some being established in the order of parents and others in the order of children, there remains no longer any reason for adopted children to be joined in marriage with the natural children of the one who adopted them. Therefore, we decree that it is by no means permitted for those who have thus assumed the name of brother and sister to change it instead to that of a marital union in place of fraternity. ^B

CONSTITUTION XXV

Concerning emancipation and the restitution of a dowry.

^A that its validity has been taken away. For some one of those who were chosen to judge (and I marvel how he decided so) decreed that those children who had been made sui juris did not simply possess the power which they had received, but that unless they were seen to have children, their independence should be revoked and they should be placed back under the control of their parent; and not only this, but also that if anyone saw offspring of his own seed flourishing, and then death looked upon it with fierce eyes and brought him to childlessness, he should lose both his children and the power of his own will, and be permitted neither to write wills nor to manage property, as if what had been given by the parents were deemed to have been granted only on those terms. This, having come to some as a settled opinion and having been easily accepted by later generations, is seen to be practiced even to this day, while the old legislation is treated with contempt.

^B Renewing, therefore, the ancient authority of the laws concerning this matter, we decree that no one of those who dispute about the restitution of a dowry shall be rejected or dismissed in vain with the matter left unfinished. But what do they say? That if a son is bereaved of his children, the gift which came to him from his father ought to revert to the donor; but that which the son has, whether given by his mother or by some stranger, does not so revert, unless the donors have included a pact that it should revert. But they command that what fathers gave to their sons at the time of emancipation should remain irrevocably with those who received it, and that they be allowed to bequeath it, unless there is an obstacle of some pact entered into at the time the father made the gift.

^C We, therefore, entering into their opinion, bid all to know that if a son who has been made sui juris, and who has no children, makes a will, his parents shall receive only those things which come to them by the Falcidian law, unless a pact (as was said above) has been entered into; but the remaining relatives, even if they were called in case of intestacy, since they neglected to interpose a pact regarding restitution, shall receive nothing at all. Furthermore, this is worthy of notice, that a son is said to be in the power of a male person alone. Moreover, because among other ways this also showed the son to be sui juris, if he who had him in his power (whether he were father or grandfather) had granted him his freedom with his own lips, ^D we add this also to our mandate, that if he at least, by his own will, liv...

to lead a life of their own ^A (whether this has been openly acknowledged by the person under whose authority he was, or whether the tongue has not expressed it, but the opinion has nonetheless silently allowed the son to regulate his own life and not opposed his living apart from him), even if outside of marital relations, the power of self-determination is confirmed for him. For if slaves, once released from the yoke, are not forced to drag it again provided no wickedness is found in them, how is it not absurd to lead sons away, once they have been freed, back under the yoke, and for them not to possess the eternal freedom which, as I have said, even slaves enjoy? ^B

CONSTITUTION XXVI.

Marriage is a great and honorable gift to men from God the Creator; for not only does it bring aid to nature, which is constantly consumed by death, and grant endurance to the race, not allowing it to perish entirely while it is being devoured by death, but it also bestows great benefits upon human life through the procreation of children. For what is sweeter for the solace of men than the joy from children? And what is more useful in the business of human life, as well as in other matters, than that which happens to us in old age? ^C For by the assistance of children, the burden of old age is seen to be lighter. But because not everyone can share in this benefit through the intimacy of marriage, the law wished—and rightly wished—in its own humanity to provide a blessing to those who have not received this gift from nature. However, it did not preserve this intention of benevolence unimpaired for everyone. For it granted to some the power to acquire children even without marriage, while it left others excluded from this grace, even though the law—once established for this purpose, to free those who had no children from their childlessness and to make those fathers, to whom this had not resulted from marriage—ought to have extended this generosity to all. ^D Yet it does not wish it to be so, but rejects those who have suffered fatal impairment: those who, having been wronged in this way and deprived of the power of procreation, were indeed worthy of pity. And the reason for this rejection is that it says: those whom nature does not know as heirs of offspring, to them the law will not grant such an inheritance.

[...as the previous page’s ending, already fixed and immutable, leads into this text:] ^A or is it not nature, but the injustice of men that has taken away the inheritance? Those whom our imperial majesty, considering it to be good, judges should not be subjected to a second penalty by law in addition to the penalty they have suffered from men, it decrees that they who wish to adopt should have the free power to do so. For I believe that the favor is to be seen as more necessary where its utility is felt to be more pressing. For eunuchs, the acquisition of children which happens through the law is especially necessary, inasmuch as this is the only way for them to become fathers, and thus it will be possible for them to enjoy the care provided by children—of which it would be inhuman to deprive them further, since they have already been deprived of their generative parts. ^B But just as one who has been deprived of his voice is not forbidden to perform the functions of the tongue through his hand, nor is one who is unable to pour forth speech with his lips prevented from proceeding through writing to the regulation of his own affairs, so it is appropriate that those who lack offspring due to the removal of the limbs and parts capable of procreation should not be forbidden to compensate for that lack in another way.

CONSTITUTION XXVII

^A reduced to the childlessness of being deprived of offspring, it [the law] honored with the right to adopt; but eunuchs and women, from whose womb1 no fruit had yet blossomed, it judged unworthy of the benefit, having reasoned—I know not how—so ungenerously. For it is not the case that because eunuchs are afflicted by the natural disability of being unable to be fathers, it is therefore necessary for the law to increase that disability; on the contrary, it is far more equitable that it should not prevent the defect of this situation from being compensated in another way, just as in other mutilations of natural functions—such as if men have been deprived of hands or feet, or any other part—they are not prevented from mitigating the mutilation in whatever way they can. And furthermore, it is not consistent with reason to restrain women from adopting on the grounds that they have not appeared as mothers. For what is the logic in granting to some, because they have been deprived of their children, the privilege of again acquiring children, while wishing that others, because they have been entirely destitute of such a possession, should live in that destitution for their whole life? For if this is the primary usefulness of children—I mean the support of old age—how was it not right to grant both these women and those [others] an equal share ^B of the benefit? For in this way, for those whose life is poor and destitute, poverty would have been lighter, aided by children, and for those who possess a life of abundance and wealth, adoption would also be advantageous to them. For whoever is brought into the position of a son, by serving the mother and zealously attending to things on her behalf as it is fitting for a son to think, will both manage her property without innovation and, sharing ^C the burden of her cares with the mother, will cause her to live more cheerfully.

Therefore, Our Imperial Majesty, abrogating the laws which do not permit the persons whom we have mentioned to adopt, puts forward a law for all who wish to adopt, whether one has been deprived of the faculty of manhood, or whether the sun has not yet seen some woman as a mother, granting them the power to do so; and this not only for the sake of the benefits which I have said flow from adoption, but also because I perceive that the dignity of virginity is thereby honored. For those who place virginity before conjugal intercourse, but are nonetheless stung by the desire for children, seeing that they can attain this outside the custom of marriage, will not endure to neglect the honor ^D of virginity. Nor, furthermore, is it true that because it is not permitted for a woman to have children in her power, it is therefore not allowed for her to adopt. First, because if anyone admits this, not only women who

...whom they have borne, but even those who have functioned as mothers, from adoption. For a woman, as the law says (99), cannot have children in her power. Then, the law that sanctioned this speaks of those who, separating themselves from their mothers, prefer to live according to their own whim, but not of those who willingly tolerate maternal authority and have resolved to preserve their subjection to them throughout their lives. Therefore, the law does not prohibit voluntary obedience and service, rare though it may be; but the woman is deprived of power there where the assent of the will does not join in for obedience. For if this were so, how is it that many mothers, already widowed, have children living with them and subject to them even to the very last day, and as they expire, leaving their soul in their hands, leave them as heirs of their maternal blessing and of their own goods?

Moreover, our imperial majesty also benignly grants this to [our] subjects, so that not only from the emperor (as older laws ordained), but also from anyone, to whom the governance of any place is entrusted, one who wishes to adopt may be able to receive the authority to do so.

CONSTITUTION XXVIII

The same emperor to Stylianus, most excellent master of the sacred offices.

Since this, too, has seemed good to the legislators, that curators be placed over minors, who would supply the care of parents for them, and have concern for the weakness of their age, and preserve their goods unharmed with appropriate solicitude, we have thought it necessary to add to the legislation that which is rightly missing. But what is that defect? That it is only by the emperor, with the command that the curators withdraw, that the administration of affairs is handed over to minors: and this when they have already reached the predetermined age limit (which the twentieth year grants to males, and the eighteenth year to females), and as if they have arrived at that age at which they are able to be wise and correctly and usefully administer their own affairs, they wish to be placed in full power over their own property. But since it does not happen to all at the same age that they are wise, it was not appropriate to decide so simply, nor to bring forward all equally to the governance of their own affairs based solely on age; but the state of each of them, who were about to undertake the administration of their own affairs, had to be examined as to what age it required. For what? If someone, after he has passed that age, has not yet arrived at wisdom, should he be judged...

^A worthy of administration? Since, therefore, men differ not less in mind than in body, and some possess a sound reason even before the legal time, while others, even when they have passed it, have a mind not yet steadied, the fact that the legislation wished this to be so made it defective. Indeed, there are other inconveniences to this legislation. First, that it is difficult, or rather completely impossible, for the will of the legislator to reach everyone. For how can those who are separated by long stretches of land and sea—to omit for now other difficulties of life, such as illnesses, fears from the plotting of enemies, and mutilations of limbs (which often do not even allow one to go out of one’s own house, let alone to undertake a long journey)—how, I say, can those hindered by these and six hundred other things that strike at the life of mortals, seek the administration of their own affairs from the nod of a single emperor?

^B Quod ergo, as we said above, was lacking to the legislation, fulfilling this, we command that those of the youth who have already passed the period of incomplete age (namely, the twentieth year for males, and the eighteenth for females), and who have a mind capable of managing affairs, and have acquired the prudence by which the governing of what is one’s own will not be spoiled nor appear harmfully granted, to these let full authority over their own affairs be given. Let these, therefore, receive it and exercise ownership. But those who still lack the judgment of a governing mind, and because of this are about to be, instead of governors, governed themselves (being ruled by folly) to their own detriment, even if they are seen to have reached the age, will not receive it. For if the purpose was that one’s goods be well managed, if this is not yet present, how—even if the age has arrived—can it be entrusted to them with safety, seeing that under their management things will not be well administered? Thus, then, those who are capable of overseeing affairs, even if they have not yet reached the age of supervision, will not be hindered. For the thing sought is that the goods not be impaired; when this is present, it is superfluous to wait for the age.

^D And not only will the Emperor grant the procurement and administration of one’s own affairs, but also those who have been allotted to rule in each place and who have the capacity to judge [will do likewise]. For thus will the providence of the legislator be useful to all who are in need, and the law will exert its force all the more.

LEONIS PHILOSOPHI

CONSTITUTIO XXIX. That the offspring of slave women if born with another, should follow its own master.

The same Emperor to the same Stylianus. Just as we know this discourse, which brings with it no perversity of falsehood, to be true and correct, so too is a true law, which is not found to be perverted by iniquity. And therefore if any law does not observe this, it is not a law, even though it may be deemed worthy of that title. For if this is the definition of law, ^A that it renders to everyone his own right, how can that which does not perform this be a law? Yet while other laws are found to commit this transgression in name only, that one ^B especially is to be condemned which commands that the offspring of a slave woman, whom she bore with some other person after she had been led away by theft or in some other manner—not with her own master—should not, once the foul deed becomes known, go off with her mother to her own master, but should be detained by him who is proven to be the possessor of another’s property.

Since this does not seem to be correctly ordered, we have deemed it worthy of a suitable remedy and command that the offspring follow its mother. For the fact that the law decrees that the thief must pay the master [what is owed] does not mean that the master should be deprived of the offspring of his own slave woman ^C and that another should profit from it; for it is enough for him to have profited from whatever service he enjoyed from her at his discretion. But someone might say: "But if he spent anything on her while he possessed her, it is proper that he also should profit from the price, and therefore it is not unreasonable for the offspring to remain with him." But if any person thinks he can provide a reason for withholding the offspring, how would it not be more reasonable that the price previously paid by the master should be taken into account, so that it may follow the mother? And how is it not more equitable that he who sustained the loss and carried the pain in his heart because of it, should find relief for his loss through this accretion, rather than that it be held by him who, besides having lost nothing (for it is permitted for him to recover the price from the one who sold him the stolen slave woman), is also seen to have profited from all the service she provided? ^D By no means, therefore, shall the offspring remain in the possession of the other, as we have said, but the former master shall have the child just as he has the mother. For if indeed he who committed the theft is wealthy, upon his returning the price which he received wrongfully, no further entanglement remains; but if he is dead, or if living, is laboring under poverty such that he cannot pay what the law exacts from thieves, then it is all the more equitable that he who lost the slave woman should have his loss comforted by the taking back of the child along with its mother.

CONSTITUTION XXX. Regarding a woman who, while her husband is alive, solicits others for marriage.

The same emperor to the same Stylianus.

Just as the just providence of the state finds it necessary to transform for the better those laws of the commonwealth that are found to be useless, so too it should be a duty of that same providence to select and prefer those laws which are rightly established and which in no way afflict the subjects, over those which are not so established and which do not result in the freedom of the subjects from vexation, especially when two laws define the same matter in contradiction to one another. For how would it be reasonable that, while generals and prefects are chosen from the better sort rather than the worse, and are preferred—those who in their administration are expected to do everything for the benefit of the subjects—the same is not done with laws, to which, for as long as the republic ^A endures, authority is given? For although the office of generals is temporary—not of the highest order, but of a worse variety, and such as ought not to have been known from the beginning—yet they are raised to the helm of government, while the laws are not; should we not think it right to introduce the best into that authority, rather than those of a worse character, which it would have been better had they not come into knowledge in the first place?

But to what end have these things been said by us? That Justinian, whose crown, besides his piety, was also adorned by his care for his subjects, after having first issued a decree concerning the dissolution of marriages, to the effect that if a woman, while her husband is still living, were seen to be speaking with another about marriage, it should no longer be lawful for her to be joined to her husband as a member of his own body, but rather she should be torn away from him as a plotter, later contradicted himself and did not permit the marriage to be dissolved for this reason. ^B We, therefore, seeing that the former opinion of that man, which he established, is more beneficial to life—both in that it is strengthened by these very things he decreed, and that it cuts off plots against marriages—and judging it more conducive to human life, we command that it be observed in this republic by enacted law; but that which he subsequently circulated in a retraction, we do not permit to find a place in the theater of our republic. If, therefore, any woman is found, while her husband is still alive, to have discussed contracting a marriage with another, as one who has cut herself off by an impious intent, she shall be taken away from him by the dissolution of the marriage, and she shall also be subjected to the pecuniary penalties to which those who are torn away from their husbands in other ways are liable. For a woman who, through the harmony of marriage, has become one flesh with her husband—and yet, not cherishing him, but at once mocking the Creator who joined them by looking toward ^C another, and at the same time bearing a hostile mind toward her spouse—how shall she not justly be cut off, having first entirely cut herself off from the union? For what would she yet appear to be, a guarantor of the

with a perverse intention turning her eye away from her own member, longs to gaze upon a stranger's: what other signs and testimonies do you desire to show that she is planning hostile things against her husband? ^A

CONSTITUTION XXXI.

The same Emperor to the same Stylianus.

He who created man from the earth, having fashioned his rib into a woman, joined her to him as a helper from his own members, so that she, knowing the cause of her own creation, might learn from thence toward her yoke-mate by what law she should preserve intact her benevolence and love. She, therefore, who is so disposed and keeps her proper mind toward her husband, is truly a helper and does not fail ^B the promise of the Creator; but she who has acquired the opposite mind is no longer recognized as such, nor is she flesh of his flesh or his member, even if the joining has hastened to bring them into one.

For this reason, regarding a woman who, because of the enmity she feels toward her husband, wantonly commits abortion and, by not bringing the fetus into the light of life, destroys the fruit of his seed, when two laws have been enacted—of which one commands the injured husband to repudiate her, while the other does not permit it—we, assenting to the law that counsels divorce, assign authority to it as being much more advantageous. For it seems to me alien to reason and altogether unjust that a woman who has conceived such open hatred for her husband that she destroys his seed ^C (to say nothing of the fact that she has plotted against nature itself) should continue to dwell with him. For if we turn away from those who inflict damage upon some other labor as enemies, how should he who has been damaged not have his own [wife] at his side, or rather, why should he not send away the one who has acted as a plotter and an enemy against the labor of procreation—which is the most necessary and excellent of all labors? What further, more evident sign could you seek to know that a woman is hostile to her husband? Or how is it not manifest from this, that while she plots hostile things against him, she deprives the offspring of its passage into life? ^D As therefore has been said: let the law which separates them prevail, and let the husband have the authority to separate himself from the wife found in such an act of daring. For if even one who merely remained outside the house, or shared in a banquet with persons with whom it is not customary,

with those with whom it is not seemly to be a guest ^A is separated by the law from the matrimonial bond (although in this case, there is seen no such evident testimony of hostility toward the husband, nor is it likely that this happened to her without any injustice to the husband occurring), what argument will there be for not separating a woman who has conceived such great hatred—and such deep injustice toward her husband and toward nature—if it seems so to the husband, rather than permitting him to have a wife who lies in wait for his life?

CONSTITUTION XXXII.

Concerning those caught in manifest adultery or adultery.

The same emperor to the same Stylianus.

The crime of adultery, if any other crime demands a grave and dreadful punishment, is—I think—not less than that of homicide. For the perpetrator of homicide often destroys one life by his bloodstained hand; but the wicked perpetrator of adultery destroys the lives of very many—of the husband, of children, of other kin—overturning and tearing them all apart with a single blow by shattering the marriage. Nevertheless, since formerly this atrocious deed was punished by death, and it seemed good to those who came after to bring forth a more merciful vote—and indeed, we are always somehow drawn toward more merciful judgments—than the punishment which they decreed (I speak of the cutting off of the nose to which both the unholy parties are subjected), this we too decree. And let this be the punishment for this nefarious crime.

And since the husband ought not to be left without consolation for such a great injustice, let him have consolation by receiving the dowry ^C of the woman who has been seen to be unjust regarding marital rights. But as for her, she is by no means to be permitted to dance away from the marriage, nor, as if she had received a prize in the cutting off of her nose, freely to mingle in the future with the lustful; rather, let her be confined to a monastery for the illegality she has dared to commit, so that in contrition of soul she may render her punishment from that source more bearable; and, once she is settled in the love of the monastic life and has taken it up, whatever property of hers is separate from the dowry, let the children and the monastery distribute it among themselves; but if no children are present, let the parents be brought into the division in their place; and if even ^D they are not, other kin are brought to the division. But if she should depart from this life in a profane habit,

since she is fully entitled to make a disposition, her property shall be administered according to her instructions.

CONSTITUTIO XXXIII. That it is not permitted for the wives of captives to marry others.

ὥσπερ ^A λέγουσι, τῆς τύχης ἡ ἀνισότης οὐ συγχωρεῖ μένειν τὸν γάμον, πῶς εἰ πρὸς ἐλευθερίαν ἐπανακληθείη ὁ αἰχμάλωτος, μετὰ τὴν τοῦ γάμου διάλυσιν πρὸς τὸ ἴσον ἐπανελθούσης τῆς τύχης καὶ ἀμφοτέρων ἐλευθέρως βιούντων, οὐκ εἰς τὸ ἴσον ὁ γάμος πάλιν ἐπανελεύσεται; Ποῦ δὲ τὸ φιλάνθρωπον καθαρόν, ζημιοῦν μὲν τῇ τῶν οἰκειοτάτων μελῶν ἀφαιρέσει, πειρᾶσθαι δὲ τὴν ζημίαν παραμυθεῖσθαι ἀντεισαγωγῇ τῶν ἄλλων κτημάτων; Πῶς δὲ μέχρι καὶ τῶν φαυλοτάτων αὐτῆς περιουσίας τῶν αἰχμαλώτων λογίζεται, φυλαττομένων αὐτοῖς τῶν δικαίων, οὐχὶ πάνδεινον τῷ μείζονι μέρει (φημὶ δὴ τῇ τοῦ οἰκείου μέλους συντηρήσει) κινδυνεύειν αὐτοὺς μὴ ὁμοίως ἀξιοῦσθαι τῶν δικαίων, ἀλλ' εἶναι ἀνεπίσχετον τὴν ζημίαν, εἰ τοῦτο ἐπὶ γνώμην ἥκοι θατέρῳ μέρει ἀλογῆσαι τοῦ οἰκείου μέλους;

Τί οὖν φημι ἐγώ; Ἐάν περ τοῦ ἑνὸς μέρους ἐν αἰχμαλωσίᾳ ὄντος, τὸ ἀπείρατον διαμεμενηκὸς τῆς αἰχμαλωσίας ἑτέρου πρὸς συνάφειαν ἴδοι, ἐπανέλθοι δὲ τῆς αἰχμαλωσίας τὸ ἐν ταύτῃ κατεσχημένον, ἄδειαν εἶναι αὐτῷ τὸ οἰκεῖον, εἰ βούλοιτο, ἐπαναλαμβάνειν μέλος, καὶ μηδαμῶς διότι ἑτέρῳ συνήφθη τοὺς ἐξ ἀρχῆς καινοτομεῖσθαι γάμους. Εἰ γὰρ ἡ γενημένη πρὸς ἕτερον ὕστερον συνάφεια δόξει τισὶν ἀδιάλυτος ἂν διαμείναι, πῶς οὐ δικαιότερον ἡ ἀρχῆθεν τῶν γάμων συνάφεια πρὸς τὴν οἰκείαν κατάστασιν ἐπανελεύσεται; Καὶ εἰ, διότι ἀλλοτρίῳ μέρει συνήπται, οὐκ ἐπιτρέπει τις διασπᾶν, πῶς οὐκ εὔλογον, διότι τοῦ οἰκείου ἀπεῤῥάγη μέρους, τοῦτο πρὸς τὴν ἰδίαν οἰκειότητα συναρμόζειν; Καὶ εἰ φησιν, «Ἀλλὰ κέρδος γίνεται τῶν αἰχμαλώτων ἐκ τῆς κατὰ προπέτειαν τῶν δευτέρων γάμων ὁμιλίας ἡ ἀντεισαγωγὴ τῆς ἐκτίσεως.» Ἀλλ' οὗτος ὁ λόγος ἄμεινον ἦν μὴ ὅτι γε χειλέων προελθεῖν, ἀλλὰ μηδ' ἐπὶ διάνοιαν τῶν ταῦτα πεφρονηκότων ἀναβεβηκέναι. Πῶς γὰρ οὐκ ἐσχάτως εἰς φρένα δυστυχὴς καὶ ἄπορος, ὃς τοῦ οἰκείου μέλους ἀλλάττεται χρήματα;

Θεσπίζομεν οὖν, μηδαμῶς ἔτι πρὸς συνάφειαν ἑτέρου τὸν ἀπείρατον μεμενηκότα τῆς αἰχμαλωσίας ἔρχεσθαι, ἀλλ' ὅσοις ἂν δήποτε χρόνοις ἐν αἰχμαλωσίᾳ ᾗ τὸ ἐκεῖ ταλαιπωρούμενον, περιμένειν τὸ ἕτερον, κἂν μήτε ἔγγραφος δήλωσις μήτε ἄγραφος ἐκεῖθεν καταλαμβάνῃ. Εἰ δὲ παρὰ τόνδε τὸν νόμον βουληθεῖέν τινες τῇ πρὸς δευτέρους γάμους ὁμιλίᾳ τῶν προτέρων διαῤῥήγνυσθαι καὶ οὐχὶ κατὰ τὴν παρατήρησιν τὴν ἐν τῇ ῥιζ' νεαρᾷ περὶ τῶν γυναικῶν τῶν ἐν ἐξπεδίτοις ὄντων κειμένην, ἵστωσαν ὡς ταῖς ποιναῖς ὑποκείσονται ταῖς ἐν τῇ εἰρημένῃ διατάξει τεταγμέναις, δηλονότι ἀδείας οὔσης, ὡς ἔφαμεν, εἰ ἀναῤῥυσθείη τῆς αἰχμαλωσίας τὸ ἐκεῖ

sustains, may be liberated, and if he wishes, may recover his own limb. ^A

CONSTITUTION XXXIV.

On the guardian who violates his ward.

It is a nefarious thing if those from whom the expectation was that they would prove upright, having already been held worthy of some trust by those who had conceived such an opinion of them, reveal themselves instead as enemies and faithless in place of good and faithful men. But in those upon whom the care of orphans devolves, if they turn out to be the destroyers of those for whom they ought to provide salutarily as for wards, this crime is as much more grievous as the trust of those who appointed them to this office was judged greater. For it is certain that a parent, having the conviction that the children of orphan age whom he leaves behind will experience paternal protection from the one to whom the care is to be entrusted, commits them to the one in whom he thus trusts. The ancients, therefore, acted rightly, who punished the violator of an orphan girl, caught in place of a father and protector (for they subject him to deportation and punish him by the confiscation of his property). But they did not preserve what is fair in the beautiful outward appearance of the law, nor do they appear ^B to have taken any care to succor the misfortune of the girl who was abused and suffered grievous things, while they decreed that the goods of the violator were to be brought into the treasury, not noticing that from this it results that they seem to wish to avenge an injury, but not to persist in the purpose. For where is the vengeance for an injury, when the damage inflicted by the injury upon the person affected is not repaired, nor does she escape the calamity by which she is held through the help of the law? And what kind of escape is there from the girl’s calamity, when she not only finds no compensation for her misfortune, but sees that gain is even prepared for another from her own disgrace and shameful infamy as she advances in age? Therefore, in order that we may purge this, as it were, a stain which has been rubbed into the law with reproach, we abrogate the rule that the violator's goods be brought into the treasury; we command, however, that they go to the place where their owner threw the injury and misfortune. ^C

CONSTITUTION XXXV.

On the penalty for the ravisher of a virgin, and those who were present at the abduction.

We do not rebel against ecclesiastical law, nor ^D

do we ^A simply oppose civil law, in bringing forward this judgment against the ravisher of a virgin; but having observed a certain path of life beneficial to human affairs—since we saw that by the compassion of sacred law evil was as it were becoming insolent, while by the severity of civil law it was being suppressed—we have therefore turned to that providence which better assists the state of affairs.

For the civil law intends that not only the one who has become the defiler of a virgin through abduction and violence should be sentenced to death, and furthermore, in addition to the sentence of death, be deprived of his property—especially when the defiled are of noble birth—but also that those who were seen as accomplices in the sacrilege should undergo the same punishment and penalty; and this is to happen even if the woman gave herself to the ravisher of her own free will. Moreover, it punishes with exile her father as well, if he ^B was aware of the act. And not only so, but even if at the time when the abduction was committed he was ignorant of the matter, yet later regarded the defilement of his daughter as a small thing, and released the guilty party from judgment, or approved of such a marriage, he undergoes the penalty of exile for his negligence. And these things indeed pleased those of old.

Our father of eternal memory, ^C looking not only to the abduction of the woman, but also to the circumstances, adapts his decree to them, and ordains: that if the abduction has been committed with arms, that is, swords or other lethal weapons besides the sword, the one who committed the abduction is to be punished by the sword, inasmuch as by the very fact that he proceeded to the deed with arms, he is not immune from homicide. As for those who lent assistance or were accomplices or who brought them together, they are to be punished by the cutting off of the nose, by scourging, and by shearing to the skin. But when arms were not employed in the violence, so that the sentence does not look to death—since, of course, in that case no homicide had taken place—the author of ^D the abduction is to be in danger of the mutilation of a hand, while those who rendered service or were otherwise involved in the affair are to pay the penalties with scourges, shearing, and exile. Now, this is the limit regarding bodily punishment; but as for what relates to money, it is permitted that this remain unchanged and effective, as it was fixed from the beginning of the legislation. But our father decrees these things, and we, accepting the judgment, confirm that legislation with our authority and effect, both in the present and for the future.

CONSTITUTIO XXXVI. THAT THE SON OF A CAPTIVE BE AN HEIR.

^A If laws are the support and foundation of the republic, it is certainly necessary for the laws to preserve their health so that the republic may be in safety. And what else should one call the health of a law but equity? Therefore, turning our thoughts toward this—that the laws which govern our commonwealth may remain balanced—we have observed that the law which forbids him who is born of two captives from becoming the heir of the goods of that parent who has remained among the enemies is in danger of being deprived of the health of the laws (which is equity), and we have determined to transform it toward that health. For it is not difficult to discern that the law enacts this unjustly. For what power has the nature of the places to prescribe an inheritance for a son? Nor, indeed, let anyone object that because the parent is a slave, the son will be disinherited on account of his servile condition. For how can the civil law, which—if it has happened for a captive to be liberated—would recognize him as free, not permit the child born of him to be a free heir, but grant the administration of his goods to a slave because he is among the enemies? ^B Furthermore, to whom would one think the goods of the captive should pertain? To his kin? But how does servitude, standing in their way, not preclude their entry into the inheritance? Or how will those to whom it is permitted not be allowed to be heirs long before? Or must they be given to the treasury? But how is that not a manifest injury? For if it is consonant with reason that the children of captives should receive support from the public treasury, how is it not a most evident injury to deprive the son of a captive of his property and assign it to the treasury? And if, indeed, when some parents have often abused their conscience grievously, and for this reason have been subjected to punishments and harshly removed from the living, their children are nevertheless not forbidden by law from being masters of their property, what reason is there why, when a pious purpose adorns the parents (and indeed, blood shed in testimony of the faith, so that their great and noble spirit has often been a miracle even to the impious themselves, has brought this about), their children should not be permitted to be masters of their own faculties? Therefore, that constitution in no way appears healthy to our majesty. ^C And for this reason, we decree that from now on, whether the son came into the light when his parents were surrounded by the darkness of captivity, or whether it was in the splendor of liberty

delivered from the pangs of captivity, let him be heir to his parents’ substance, whether it falls to his lot to be released from the bonds of captivity together with both parents, or not; or whether, when one of them has obtained freedom, the other ends his life in the bonds of misfortune, or whether both parents die in captivity; unless, indeed, one should anticipate death by making a will. For then those whom the testator willed shall be heirs, provided that the legitimate reserved portion ^A of a third is secured for the child.

Constitution XXXVII.

The same Emperor to the same Stylianus.

Since the present law is deficient of full perfection, we impose upon it a fitting form by the addition of what is lacking. It says, then, concerning a servant ordered in his master’s testament to be granted freedom, who is ignorant of the decree and for this reason maintains his liberty through uncertain arguments: that he is in no way to be deprived of liberty on account of his ignorance, but is to live in freedom; yet that in order to make a will as a free man, he does not have the power, as if [the master] repented of the freedom he gave, and this [power] belongs to him perpetually. For since the faculty to bequeath his own goods as a free man is not granted to him, how does he not return to his former servitude? We, therefore, say: ^B since the law has provided the rank and manner of a free life, it will also provide those other things which accompany liberty. For if it were necessary to prevent him from doing what free men may do, the law itself would have forbidden it; but it did not forbid it, but judged him worthy to do these things. Why, then, would it not consider him worthy of those actions which properly befit the dignity of liberty? Let, therefore, the one who has been enfranchised be truly free, and let him dispose of his own goods, in so far as the master’s will gave them to him as inalienable, in whatever way he may wish to dispose of them. For it is not fitting that one who has visibly received the honor of liberty ^C should be dishonored by an uncertain suspicion, and be prevented from making a will.

CONSTITUTION XXXVIII.

The same Emperor to the same Stylianus.

This also seems to me a kind of covetousness, even if the matter adopts a fair-seeming form—namely, the ordinance of the law; I mean, that servants are not permitted to dispose of their own goods, ^D

but whatever they may have sought through their own labors and arduous ^A toils, as can be conjectured, the hands of each master gather. And indeed it causes wonder how the law enacted from the beginning could have attributed no moderation nor equity to such a matter. Yet those from whom that law originated, and the law itself, may have the approval of others, as each person's opinion dictates; but I by no means approve of them, nor will I allow that decree to hold among my own servants: but on the contrary, I grant them full power to manage their own affairs. Therefore, from this time forward and for the future, let the emperor’s servants be truly the masters of their own property: so that, whether they are healthy or whether, being sick, they think death is imminent, they may not be deprived of the power of disposing of their affairs according to their own will, nor be expelled from the ownership of the things they possess on account of their status of servitude. Therefore, let this be the newly enacted law concerning the emperor's servants, and let it have force. For the magistrates and the rest of the common people, if they do not wish to acquiesce to this our decree, it is permitted to look back to the ancient law regarding servile goods. ^B

CONSTITUTION XXXIX.

Regarding the right of the prodigal to manage his own affairs.

No one among mortals has reached such a height of perfection that he does not at some time manage his affairs in an objectionable manner; nor is anyone (if I am not mistaken) so senseless that he cannot often be useful to himself. For God does not allow him who trusts in his own prudence in all things to do everything irreproachably: nor does He, since He is both Creator and Curator of His creature, allow him who is devoid of judgment to fail in all things through imprudence. I have prefaced this on account of that law which in every way forbids a prodigal to want or to decide anything concerning his own property. Yet one ought, by fixing one's eyes on the deeds done, to evaluate them according to their reasoning, and not sanction it so simply; and if anything had been done uselessly, one should not admit it, but where some utility was involved, one should accept it. ^C But now it prescribes nothing of the kind, but in general takes away from the prodigal the power of consulting about his own affairs. We, having suspected that this does not comport with sound judgment, and relaxing that law, ordain that those things which designate an erroneous judgment and a prodigal person, let them be considered worthy of neither approval nor confirmation, ^D

and those which look to the utility should be accepted and by no means rejected. For what if a prodigal wishes to leave his inheritance to his own kin, or to distribute his possessions among the poor, or finally to remove the heavy yoke of servitude from the necks of his slaves? Are we to say that, just because he is a prodigal, he is not permitted to wish for such things? What if, when he has a property that is a burden to him, some other person who is able to remedy this defect should wish to acquire it, and by offering a price higher than the property is worth, should relieve him of the loss? Does prodigality prevent him from taking counsel for his own interests and transacting business usefully? Indeed, I do not see how it does. Therefore, as I said, let the condition of the transactions be observed; and if the manners of the prodigal are not reflected in them, let what has been done be ratified. But if it appears to be a deviation from prudent management of affairs, let it be held worthy of neither approval nor confirmation. ^B

Constitution XL.

That captives may have the right of making a testament.

Those who formerly took care in the publishing of laws, while they brought forward many things for the right regulation of human affairs, and left behind a rich testimony of their own benevolence (namely the laws according to which the republic is preserved in a harmonious state), I do not know by what reasoning they acted such that the treatment concerning captives, to whom they do not grant the power of disposing of their own property, should not correspond to the rest of their benevolence. ^C For the legislation which is contained concerning their wills is decreed very kindly and benevolently. For the fact that they determined that sometimes, when there is a scarcity of witnesses, a testament might be sealed by a smaller number of witnesses—and indeed that, with no witnesses at all being summoned, the testament might very often be held valid, just as was determined for those who fall in battle—is a great proof of benevolence. But the legislation concerning captives does not appear to be of a kin with the aforementioned, nor to have sprung from the same benevolence. For the fact that they do not permit them to make dispositions concerning their own property is not only not a benevolent provision [to have made] regarding them, but—

it actually intensifies the captivity itself ^A. For how do they not lead them into captivity once again? Or how is the evil and the inconsolable grief not increased? The captive departs from human affairs bearing in his heart a sting more bitter than death, when he not only ends his life in captivity, but also, if he knows of any property belonging to himself among his fellow-tribesmen, he has not the power to make provisions regarding it; rather, he is driven away from his own possessions as if they were those of a stranger, and is cast out from the administration of those things which he acquired by his own labors—those very things for which, having faced danger, he fell into the misfortune of being taken captive.

And how, if the captive has any kin—children, a wife, brothers, or others whom the law calls his heirs—will they all not alike, with eyes turned toward the inheritance that devolves to them from him by intestacy, abandon the care of liberating the captive in the hope of obtaining that [inheritance]? ^B For we know human affairs: very few indeed preserve true love, and for the sake of this alone is the mind stirred to bring help to those surrounded by painful circumstances; but by far the greatest number proceed to bring help to those in need of assistance only in the expectation of obtaining some reward. For what reason, then, would any relative or anyone else undertake the care of the captives? For if it were permitted to them to make dispositions regarding their own affairs, some, calculating that the labor would not be profitless for them, would not sluggishly have undertaken it; for they would have reflected, as is likely, that either, if their efforts reached their goal and they obtained the captives' freedom, they would receive some reward for their work and labor, or also, if death, forestalling the effort, took the man from the midst of things while he was still in bonds, he would, in the disposition of his property, have considered the one who had taken care of him worthy of a larger portion than those who had neglected him; for they would not have supposed that he would be forgetful or consider their labors of no account.

For this reason, therefore, as I have said, some would have been induced in no slothful way to exert themselves for the care of liberating captives. But now, since these are forbidden to make a will, and those heirs under intestacy enter into the property, I do not know if anyone could be found to undertake the labors for their recovery. For the hope of succession by intestacy, and the fear lest one labor in vain if perchance death forestalls the liberation and removes the captive from human affairs, makes men slower (lest I say utterly unwilling) to undertake the effort—a thing which would not happen in the same way ^C if the law did not make their testaments of no effect. But if a person’s own resources are the price for the liberation of the soul, how do they not in this also suffer the greatest injury, that while they are not permitted by law to make provision regarding their own property, even though [it is for the purpose of their recovery] ^D that the efforts [...] the hope for the succession by intestacy and the thought that one might labor in vain—should death forestall the effort and take the captive from among men—makes one more hesitant (not to say utterly unenthusiastic) toward the enterprise, which would no longer happen in the same way if the legislation did not render the disposition of no effect for them. For if one’s own wealth is the ransom of the soul, how does one not, by this very fact, suffer the most extreme injustice?

^A Furthermore, inasmuch as the matter regarding liberty is also awkwardly arranged by this, and—what is most absurd of all—because no permission is given to the captives to dispose of their property, they often arise as masters of the acquisitions whom the share of the most bitter enemies has held; and those enemies, while still in the realm of the living, do not even endure to look at them—what could be more base than this? Since this is how matters stand, it did not seem right to our majesty to overlook it, but just as we have taken care in other matters to ensure that our commonwealth is well-governed according to the power given to us by God, so too have we determined to correct the affairs of the captives for the better.

We decree, therefore, that from this moment on, captives shall in no way be subject to the law that restrains them from disposing of their own affairs as before. Instead, it shall be permitted to them, if it is possible, in the presence of five witnesses, or if not, three, either to commit their will to writing or to set it forth by an unwritten ordinance—it being understood that those who have been taken for the testimony must confirm by oath the integrity of the disposition of the deceased—whether they leave children as masters of their property, or, not having children, bring others into the inheritance. ^B For we do not deem it just that those who equally participate in the common name of the commonwealth and are considered to be of the same nation should not be honored with an equal legal right to that by which their own people are governed; while those who have not experienced captivity have the power to deliberate about their own affairs as they think fit, but the others do not—as if they had committed a crime because, in fighting for their fellow citizens, they came to the trial of capture. If, however, any of those taken in war, either voluntarily or constrained by the force of those who hold them, should come to this purpose, that he should ordain his property to pass to the enemies, then such a ruling shall in no way be valid, and the disposition ^C will be quashed as having been done in a manner inconsistent with the Christian commonwealth.

Let these things be determined regarding those who have intended to anticipate the end of life with a testament. But if the final day of life should come upon them suddenly and the person be carried off from among men without having made a disposition, then if there are any to whom the inheritance pertains, whether ascendants or descendants, the property shall pass to them; if there are none, ^D [the property] shall be left...

If, however, there are no persons to whom the succession of the property of the deceased captive might look (I mean those whom the family of the deceased recognizes neither as ascendants nor as descendants), we command that it first be considered whether he was beholden to any, and that, with the debts deducted, the remaining property be divided into two parts, into a third and two-thirds; and that the third be set aside for distribution for the soul, and that the recovery of the other part be ^A made into the imperial treasuries, yet without the slaves. For these, unless the fulfillment of the debts stands in the way, we wish to be honored with full freedom. The same procedure for the administration of property is to be observed also where there are debts, when, as has been said, the one held in captivity departs this life without heirs. The correction which has come to our mind regarding the legislation that grieved the captives is hereby set forth through this our divine law; and may your magnificence make the enactment known to those under your authority, so that when it has become known to all, everyone may determine concerning their own affairs, including those whom captivity holds, in whatever way they wish.

CONSTITUTION XLI.

In cities, five (93-94), but in travel and on farms, three (95) witnesses suffice for the validity of testaments.

The same emperor to the same Stylianus.

In all matters of human life ^B that require the testimony of witnesses, it is incumbent that the confirmation provided by them be present: more especially, however, do those dispositions ^C require such corroboration which are made by those looking toward the final day of our life. For there is no remaining way ^D

of confirmation. For there is no remaining way by which one can rightly settle these matters, unless the security provided by witnesses is present. ^A It was appropriate, therefore, in as much as it is necessary, that the dispositions made by men departing from life should be as firm as possible, and that they should be secured by testimony. But because we often see that things are not brought to the possible state due to the lack of the exactitude which they strictly require—for when one cannot use strict law, there is a necessity to use it as one is able—it appeared to us not foreign to providence to also make a determination concerning the number of witnesses who must be present at testaments. This indeed came into the mind of our father of eternal memory, but it seems that what was determined was not entirely precise. For among the legislators before him, some thought that seven witnesses should be taken, others five—seven in cities, as it is natural there to have no lack due to the multitude of men, but five in the fields and on journeys, due to the scarcity that often occurs there of men worthy of trust. ^B These matters thus having been distinguished by them, our father also, overlooking the higher number, assigned the confirmation of testaments by five witnesses both in cities and alike in the fields and on journeys, looking, as it seems to me, to the lack of virtue that now possesses life. Nevertheless, as has been said, not much exactitude belongs to the ordinance. For perhaps someone will say that it was not proper to assign an equal number, but to tighten the testimony occurring in the fields and on journeys.

What he then overlooked, we, not overlooking, decree: that in cities the validation provided by five witnesses for the dispositions should attain acceptance, but that in journeys and in the fields and in other sparsely populated places, the confirmation by three should be acceptable.

CONSTITUTION XLII

The same emperor to the same Stylianus. It seems that the obscurity often seated in words is something terrible, causing matters to fail, ^D just as a mist spread over everything, and affecting the discerning power of the soul and the correct administration of affairs. For this…

^A Since we have recognized that this mist of unclarity has been poured over those constitutions which define matters concerning wills, and that they bring no common injury to affairs, we have deemed it good to purge them, and to define by an unambiguous law, which cannot be variously interpreted, how or in what way wills ought to be confirmed. For those before us who have dealt with wills have divided such things in two ways, handing down that some are to be completed in writing and others without writing; and they have also posited the mode by which each testament—I mean the written one, and the unwritten one—might be validated. They decreed that the perfection of the written will consists in this: that while the testator is still among the living, it be rendered absolute in all respects by the subscription of witnesses and by seals; and that of the unwritten in this: that seven witnesses, not unworthy of trust, confirm that they heard the testator, while he was thus speaking in his own tongue concerning his own affairs, declare his wishes. And having established things in this manner, they add regarding the written will that if all things do not simultaneously unite toward the perfection of the writing which signifies the will of the testator, and if the subscriptions of witnesses testifying to its genuineness, and the seals providing credence to the subscriptions, do not all ^B occur together while the one whose testament it is is still among the living, then it is entirely void, and is of no force either as a written or as an unwritten will. From this preemptive decree, since it was conceived not very cautiously (not to say maliciously), confusion and ambiguity have invaded the realm of testamentary law. For to some it seems that the testament should be cast aside entirely, like bastard seeds, in order that while some are permitted to take utility from the goods, not even the slightest particle of utility from his own affairs should accrue to the deceased (if indeed the deceased feel any utility; yet they do feel it, when through the distribution of benefits some are revived by their death). And these men, as I have said, wish in this way to exclude a man entirely from the utility of his own goods. But those in whose minds a more benign sentiment resides, grant to a testament which has not received perfection through the impression of seals, if not the standing of a written will, yet at least such force as is granted to an unwritten or nuncupative one. ^C We, therefore, seeing that this perplexity is such a detriment to human affairs, side with the opinion of the more benign judges, and we convert the darkness and ambiguity of the ancient law into simple and clear knowledge. Therefore we ordain that a testament, with respect to the things which have been cautioned regarding either written or nuncupative testaments, ^D we thus seeing this dispute, which is detrimental to affairs, take the side of those judges who are more humane, and transform the murky and doubtful [provisions] of the ancient law into a simple and plain understanding. Accordingly, we ordain that as regards what is owed to written testaments...

paralocumend ^A should an imperfect testament be sustained if it lacks the witness of a nuncupative testament, it is to be valid by the power of a nuncupative testament; but if it is in need of the faith of witnesses, let it lapse into invalidity, as having nothing capable of creating belief. For what consistency—or rather, how is it not utterly irrational and senseless—that witnesses should now be deemed worthy of such acceptance as to validate things not committed to writing at all, yet now be held in low esteem as if they were not worthy to confirm things declared in writing? And yet, in this case, faith becomes in a way stronger. Furthermore, does it not contain, alongside the irrationality, a shameless betrayal of justice? For what if, after a disposition has begun to be set down in writing and the witnesses who bestow credibility upon these things have heard the ordinances, either disease seizes the writer, or death snatches him away, and not long after the testator himself is carried off (as many things befall men unexpectedly); shall they for this reason unjustly suffer the loss of the benefit lying in the will of the deceased, which they were deemed worthy to enjoy from him? ^B And, most wretched of all, the evil does not stop at the living, but pursues even the dead, and deprives him—insofar as lies in the judgment of those who invalidate the will—of the compassion of the merciful God, of which there is hope that he will partake, since, after he has departed, others are relieved by his benefits. For this reason, our power, having considered these things, has decreed a clear and indubitable rule: that if the witnesses merely say that the testament is that of the man in question, it is not to be rejected, but shall be firm and valid, even if not only seals are missing, but even the subscriptions of the witnesses together with the seals are absent.

CONSTITUTION XLIII

and ^A if those who are ignorant of letters were to be witnesses—if indeed in cities where there is almost no shortage of skilled men, wills have been made; or in other places where the study of letters and learning is not very common, if an exact account of the witnesses were not kept there; and if not only those who have been educated in the study of letters were sought, but access to witnessing were also granted to those unskilled in letters. Therefore, what the law decreed should happen only in regions where there is no abundance of those skilled in writing, custom has allowed to be done everywhere, in all places and cities, even if there is a great supply of learned men, for those who wish to do so. And this, indeed, has seemed pleasing to our imperial majesty and worthy of being confirmed by the authority of the laws.

We decree, therefore, that in every region and city wills may be confirmed even by the unlearned, provided that the character of the witnesses justifies trust. Moreover, we do not restrict the number to five alone, but in places where it is evident that it rarely happens that people worthy of trust come forward, we wish three also to be admitted, and their testimony not to be rejected. ^B

CONSTITUTION XLIV.

Since all other human acts and business dealings that are recorded in writing necessarily require the exact assistance of testimony, this is most especially the case for those things which men, as their nature verges toward death and their departure from the flesh is imminent, set forth in writing, committing their accounts and their wishes at the very point of their departure from life. For while those documents which are written while people are still alive, even if they are sealed, have their flaws detected nonetheless through an examination of the words of the one who wrote them and of those concerning whom the writing was made; yet as for those things which are established in writing by the dying, it is impossible to say whether they contain anything improper if no certain support from witnesses is present. ^C But this treatise has also been drafted by the legislator in a far superior manner, since, while wishing to avoid often compelling the witnesses of wills to take an oath, he orders that their security be provided by the seal of the magistrate of the census, who is now called by the general title. For, since this does not offer the same easy and ready access to swearing an oath, and by conferring vigor upon ambiguous wills through a distinguished seal, he has acted so that oaths might be suppressed: this, indeed, is a matter of both wisdom and ^D

as being of most prudent counsel and pre-eminent. And this indeed held good in the past. Afterwards, however, custom changed it, so that above the witnesses, he who had attained the dignity of Quaestor should bear witness to the testament by his seal. And indeed that confirmation also seemed best to our ancestors.

Following them, and in order that it may be still more valid, we command that the seal of the Master of the Census (to whom neither the care of the laws nor administration now pertains) should have no authority or business whatever in the sealing of testaments (just as it does not seal them even now), but instead of that office, the Quaestor should affix his seal. Nor, in truth, shall he alone seal testaments; but furthermore our most magnificent magistri and patricians, the Prefect of the City also, and others who preside over trials, shall commend them with their own seals for their credibility. But let those in the city know and do this; and in other places and cities, let the governors and in every province the presidents know and perform this.

CONSTITUTIO XLV. That judges shall set down their verdict in writing and seal it with their own hand.

The same Emperor to the same Stylianus. Since we are taking care that matters already judged may remain firm, and that no suspicion or controversy may follow upon judgments, this has presented itself to us as necessary to be ordained: that to whomever it has fallen to judge and settle lawsuits, in those matters on which they are about to pronounce judgment, they shall deliver their verdict in writing, and seal it with their own hands, so that if it is discovered later that it was judged rashly, they may not be able to deny their own verdict, nor may it be permissible for any other person to falsely attribute to any of the judges a verdict fashioned by a supposititious or adulterated writing. Whoever, therefore, is honored with judicial rank, let him act thus from this time forward: and on those matters which he has judged, he shall issue a decree in writing, and signed with his own hand.

CONSTITUTIO XLVI. The abrogation of certain laws concerning curiae and decurions.

The same Emperor to the same Stylianus.

LEONIS PHILOSOPHI

^A Just as the use of every other thing in common life dictates how each is handled—so that we account as valuable those things which bring some benefit, while we count for nothing those which contribute nothing—so must we by all means also adapt ourselves in the composition of legal chapters. Those which have some use, bringing a benefit to the state, must necessarily both be retained and honored; but those whose employment is either of no moment or is evil, these should not only be disregarded, but even removed and rejected from the body of the laws.

We say this because among the ancient laws passed concerning decurions and curiae, some assigned heavy and insupportable burdens to the decurions, while they granted the curiae the privilege of appointing certain magistrates and governing cities on their own authority. Since, nowadays, civil affairs have been transformed into a different state, and all things depend solely upon the imperial majesty’s concern and administration, these laws ^B wander as it were in vain around the legal soil and are by our decree removed therefrom.

CONSTITUTION XLVII

Formerly, because the status of the republic was different, the order of affairs was likewise different. For since not all matters fell under the deliberation of the prince, but there were some regarding which it was the duty of the senate to examine and to command, these were brought forward by them. Therefore, three praetors ^C in number were appointed by them in the city for the administration of affairs, and this act proceeded by the sanction of law. And this was done not only in the city, but also in other cities, certain prefects (not, however, such as the military prefecture knows today, but certain more excellent men who had other concerns entrusted to them) were appointed by the decurions, as they were called.

Since, therefore, matters were then otherwise ordered, common usage required that law. But now, when all things depend upon the principal care, and by God’s help are considered and judged by His providence, and that law provides no use for itself, we decree that, along with others which have been cast out of the republic, this one also is to be cast out. For just as ^D when laws have not yet been born, the need of affairs provides the cause of their birth, so, when a law is not established for the utility of present affairs, it follows...

to the origin, in this way, when a law does not serve the utility of affairs, it follows that it should be abolished.

CONSTITUTION XLVIII

I do not know how it is that the ancients, without having examined the matter with more precise judgment, gave women the authority to come forth to bear witness, nor did they consider an idea that was ready to hand, that an unreserved appearance before the eyes of men brings disgrace to a woman, while on the contrary, avoiding such a thing renders women modest and respectable. How, therefore, did they permit ^B them to be taken up for testimony, when it often happens as a result that they are found moving about in crowded public assemblies and using their tongues in a manner less restrained than becomes a woman's speech? This, as I have said, has occurred to me to wonder about. For why was it thought acceptable that the testimony of women should come forth into such matters, in which they have allowed them to testify just as men do—just as we hear of Scythian women arming themselves for battle along with their husbands? And how does this, beyond being an immense absurdity, not also contain the confusion and overturning of the boundaries of nature, by which the race of females and males has been divided? And how does it not betray the modesty and respectability owed to women, whose way of life at home also ought to be preserved, and not be left entirely abandoned and lax? For the entrance into the bearing of witness, ^C opening a space for a boldness unsuitable for a woman—by which they are mixed into crowded assemblies and are involved in the affairs of men—strips away the reserve and modesty naturally inherent in the female character and accustoms them to advance toward shamelessness. But not only that; the thing done also brings a kind of injury to men. For what else could this be but an injury (and an injury of the gravest kind), if into those matters the management of which is most properly a man's, the female sex should advance? Therefore, our majesty, correcting not less the custom than the error of the law, has excluded them from the bearing of wit- ^D

precludes access, and by his own stated intention ^A he decrees, and by law forbids, that women in any way approach as witnesses to contracts. Yet in matters pertaining peculiarly to them, in which it is not right for men to be involved (I speak of childbirth, and if there is any other matter solely for female eyes to behold), let them testify to their own peculiar matters, which are invisible to the eyes of men.

CONSTITUTION XLIX.

The same Emperor to the same Stylianus.

Since testimony is a matter of great moment and necessity ^B for the preservation of the business of common life, it is right that it be borne not by any persons at random, but by those who live without ignominy. Rightly, therefore, do the laws dispute this with precise reasoning, and do not simply grant to everyone access to give testimony. However, inasmuch as some laws have allowed men of servile condition to testify in certain matters, it has seemed good to us to mark this with a note, so that those who are not participants in a free life may be excluded from testifying altogether, and that the rule of the Novella constitutions may prevail, ^C prescribing for all testimony without qualification and in every matter, whether these be testaments or any other business of human life that involves testimony. For if those who are of free life, but do not live honorably nor in a manner worthy of the liberty they have obtained, and do not maintain as much greatness of soul free from servitude as is possible, but are subjected to the servitude of illicit actions, are not permitted to give testimony, then neither shall it be granted to those whose life is demonstrably not free to bear witness. For although this mode of servitude is different, it is nonetheless ^D a state of servitude, in which it is unworthy for the dignity of liberty to participate.

CONSTITUTION L.

The same Emperor to the same Stylianus.

Inasmuch as many, at times in order to return thanks, and at other times motivated solely by a kind intention, confer gifts upon some, it has seemed good to specify clearly touching this head, what kind of gifts ought not to be overturned, and

and what kinds are to be held invalid. ^A The ancients, while examining this matter, expressed the opinion that a donation falls short of being valid if it exceeds the sum of five hundred gold pieces, unless a public act renders the gift manifest; even if the recipient takes away the assurance of the intention in a private and more cryptic writing by the donor. And I know not what they were aiming at with this superfluous hair-splitting. For when a donation has been comprised in writing and just testimony has been added to it, why was it necessary to define it more accurately? ^B We, therefore, consider this curious refinement, which we know is not strictly observed in the case of donations at all, to be put to rest by a decree, so that a donation exceeding five hundred gold pieces, if it is in writing, shall remain valid, but if it is known to be devoid of a written structure, it shall be invalid regarding the amount exceeding the measure of five hundred coins, even if the one claiming the donation makes a claim for it under witnesses. For indeed, that which is valued up to five hundred, even if it be unwritten, bears validity when confirmed by three witnesses; and it is fitting that donations be examined and either stand or be invalidated according to this rule.

CONSTITUTION LI.

Regarding a found treasure, with whom the finder should share it.

human prudence has also devised for itself through laws salvation for human life. For this reason, now too, when our Lord and Savior has commanded us to be merciful and to comfort those who are pressed by need—those of us who, enjoying His gifts, live in an abundance of things—yet some, ungrateful toward the Lord and devoid of compassion for our common human kinship, not only do not reach out a helping hand to those in need, but even, as if begrudging even the sun’s rays the sight of their gloomy hoarded treasures, bury them in the earth: it was necessary that a law should be put forward concerning this inhumane invention. ^A This law, although it was passed long ago, having later been overcome by greed—which undermines many excellent things—and having been deprived of its own vigor by it, is now restored in its entirety by our imperial majesty. For the law commanded that he who had stumbled upon a buried treasure, if the estate in which it was found belonged to the prince or was public property, should divide the discovery equally with the treasury; but if the place from which the treasure was brought to light belonged to neither the prince nor the public but to some other person, then it should be distributed equally between the finder and the owner of the land. And if it were the finder’s own estate, the whole discovery should go to him. Such was what that law decreed. But perverted greed, ^B I know not how, having bypassed this, and granting unjust gain to the public treasury, has up to this day assigned the discovered treasure to it and rendered the law idle. And what comes of this? Those who know that treasures lie hidden somewhere, while considering that others will enjoy their labors, but that they themselves will undergo the toil for nothing, and moreover that they will sometimes be subjected to harsh examinations, neglect to investigate them: and so, things that would have brought great utility to men had they been brought into the light, remain hidden forever and perish. ^C We command, therefore, that henceforth judgment shall be rendered according to the equity of the ancient law; and when any treasure has been found, if the place where it is discovered is in public or imperial lands, the finder shall share it with the treasury; but if it is of some other person, in a similar way, both the finder and the owner of the land in which the treasure was discovered shall divide it between themselves. If, however, the finder should look toward dishonesty and not wish to confess all that he has discovered, but through deceit and lies should hold back some part of what was found; in ^D

if he should wish, but rather keeps it by deceit and lies out of the discovery, then his efforts become empty for him, and he receives nothing at all as a culprit and a thief of others' property; rather, the benefit belongs only to him who has the ownership of the place. ^A

CONSTITUTION LII.

The same emperor to the same Stylianus. If money is the sinews of affairs ^C and their abundant resource, and the stability of the state is from the power of property, then the ancients rightly drove out scarcity like a disease and decay, and consequently they wanted every form of coin, even if it were referred to the ancient and long-past emperors, to be equally current. But for this good practice, I do not know what possessed those who were placed in command of the scepter later on, that they did not allow it to remain in the same shape, but, as if envying the prosperity of their subjects, they condemned as unlawful the coins of those who ruled before them, if they bore their image, and assigned only their own to be current, not wishing to see the innovation that resulted from this for affairs, nor the harm, which indeed spreads through all, but especially against the poorer and those needing greater help and assistance. For the multitude of merchants and those who otherwise earn their living by their hands ^D and, in short, the entire race of farmers is driven into a great necessity of destitution, not having from elsewhere to borrow the abundance of goods, that incentive having been abolished which formerly assisted them.

For this reason, we, not being pleased with the innovation of the more recent ones, but following the foresight of the ancients, decree, according to their humane and most civic opinion, that every kind of coin which has an unadulterated form, an honest material, and full weight, if it belongs to any of the earlier

...or of a more recent one, let it be equally estimated and treated in the republic. The penalty, however, for those who, with a rebellious mind, shall disregard this decree, shall be that they be beaten with scourges and shaved to the skin, and moreover, pay three pounds of gold.

Constitution LIII

That it may be permitted to everyone to bury the dead both within and outside the cities.

The same emperor to the same Stylianus. In my opinion, the civil laws ought not only to prescribe things that are beneficial to the common life of the subjects, but it also befits them to decree what is appropriate to human compassion regarding those who have already departed this life. Those things, however, which expose the bodies of the deceased to ignominy and insult, and through which disgrace and turpitude are brought upon the common nature of men, must by no means be included in the laws. For if the law wills that the dead be buried only outside the cities, how is this not an affliction that brings disgrace to human nature? Indeed, if in prescribing this the law were concerned with those for whom their resources—which they possessed while living—would provide an easy funeral, perhaps the law might have had some reason for commanding this. Although, even then, it would have been necessary to have regard for the compassion of the friends, relatives, and those close to the deceased, for whom it is truly a great consolation in their grief and bereavement to be able to embrace the sepulcher of their friend and to pour tears upon it—duties which it is not easy to perform if the burial is outside the city. Yet, if the law wished to have those buried outside the city only for whom it was easy to do so on the very day of death due to their wealth, the law might have had some occasion for that harshness. But now, since that harshness extends to all alike, how is the absurdity not manifest? How is it not evident that a law bringing reproach upon nature is intolerable? For those who, while they still lived, were needy and destitute, how will they be buried on the very day of their death? And how, when the burial is delayed due to poverty, will they not lie for many days unburied, a spectacle at once wretched and horrible, disfiguring the humble nature of men? Besides these things, since the dead are sometimes called servants of God and are honored for their heavenly glory, how is the casting away of their bodies unburied not also subject to expiation?

Therefore, let this law by no means be numbered among the laws of our state; but rather, as...

as is rightly condemned by custom, so let it be altogether rejected by our decree, and let everyone, whether outside the walls or within the city, who wishes to bury the dead, have the freedom to carry out their intention.

CONSTITUTION LIV. That on Sundays all should abstain from work.

The same emperor to the same Stylianus.

The zeal of those who apply themselves to the publication of items useful to the common life is excellent, and they are worthy of praise for the fact that they extend all their cares toward the benefit of their subjects, and that their love for the commonwealth is celebrated with praises, and their precepts are observed holily. But meanwhile, it would be much more equitable to attribute such reverence to those who are known to have undertaken anxieties for the salvation of the human race as legislators of the entire world, and to prefer the laws which they have enacted to all others; and this, not only on account of what I said—that they have undertaken and applied a care for the benefit of men that is beyond comparison—but because they have also inscribed their decrees by the virtue of the divine name. Since, therefore, the law of the foremost disciples, ^B which commands all to honor the day of the Lord’s resurrection with a cessation from work, is seen to be contradicted by another law, which does not think that all should be forbidden from working at the same time, and believes that it should be granted to some to operate; it says: "Let all judges and urban plebs and the offices of all the arts rest on the venerable day of the sun: those placed in the country, however, may freely and licentiously engage in the cultivation of the fields," the cause of whose dehonestation of this day rests on no reason. For although the preservation of fruits may seem to be able to be pretended, that diligence is of no account, but only virtue, when it is the mercy of the fruit-giver that provides the abundance of fruits when it pleases Him.

Quoniam, I say, such a law has come into the light, which depreciates the worship of the Lord, and prescribes a decree different from those who obtained the victory against all adversaries by the Holy Spirit: we also determine ^D that which pleased the Holy Spirit and the apostles instituted by Him, so that all may abstain from labor on the sacred day on which our integrity was restored: and let neither farmer nor anyone else undertake illicit work on this day. For if he who

^A If those long ago, while observing mere shadows and types, held the day of the Sabbath in such high esteem that they abstained entirely from all work, how is it fitting that those whom grace and truth now attend should fail to honor the day that has been enriched with honor by the Lord, and which liberated us from the disgrace of perdition? Or how is it not utterly unthinking, when out of seven days one is set apart for the honor of the Lord, for us not to be content with the six days for the use of labor, and to keep that one day inviolate for the Lord, but instead to make even it common and deem it a time for our own labors?

CONSTITUTION LV.

That the Jews should live according to Christian rites.

Those who formerly held the scepter concerning the Hebrew race—which was once glorious through the divine patronage afforded to it, but now is famous for its calamities due to its contumacy against Christ our God—promulgated various laws regulating the status of their life. These command that they should read the sacred Scriptures for themselves, and that they should not be barred from their own rites; moreover, that they should be accommodated by the bond of circumcision, in addition to the kinship of blood. These things were indeed done by those who formerly (as I have said) held the empire. But the most holy prince, he from whose seed we were born, as one possessed by a greater desire for their salvation than others were, was not content to leave them—as others before him had done—solely to the observance of the earlier laws; but, partly through the explication of the sacred oracles, and partly through admonitions, he translated them to the saving worship of Christians, and initiated them with the life-giving water of baptism. And in that he persuaded them that they ought to be transformed into the new man according to Christ, he brought it about fully that they should put off the old man, and whatever savored of antiquity—circumcision, the Sabbath, and whatever else there might be—he cast off together with it. Yet though he had with such great effect led them away from Jewish obstinacy, he ^D did not also impose silence and cessation upon the prior laws which permitted them to live according to the Jewish rite, by the decree of a subsequent law.

^A What therefore our father passed over, thinking it proper to fulfill, we enjoin silence upon every more ancient law which legislates concerning the Hebrews, and we command that they do not dare to live otherwise than as the pure and saving faith of the Christians desires. If any one should be found having turned away from the ordinances of the Christians and having returned to the customs and dogmas of the Jews, let him pay the penalty according to the laws established concerning apostates.

CONSTITUTION LVI.

This law, which removes the right of coastal properties from those by whose vestibules the sea is seen—and which, moreover, subjects the owner of them to an action for injury if he prohibits those who wish to fish there—does not appear to us to have established what is just. ^B For whatever has come into the possession of any person through no unjust title, whether it be an inheritance from parents, the fruit of one’s own labors, or acquired in any other way not forbidden, why should it not be under the management of him who has the authority, and why should it not provide advantages to him far sooner than to any other? It is not, therefore, for a law, which at least respects equity, to introduce others to the profit of a thing in which they have no right, and to deprive those who claim [the property] through a paid price, the right of kinship, or by any other title not prohibited, of this [profit]. But furthermore, since an annual tax is exacted from him as if the area belonged to him, ^C that he cannot expel from there one who wishes to make use of the benefits of the place against his will, but if he should attempt to do so, he is to be examined by actions for injury—how is this, besides being entirely unjust, not also absurd in every way? What if the owner of the property is not unskilled in the art of fishing, must he himself sleep in idleness, and will he have to permit others to hunt for the profits of the vestibules? Or, if he does not embrace idleness, will he go wandering to fish at the coastal areas of others, while it is not permitted to him in his own? But I do not see any reason why it should be done in this way. ^D Therefore, we decree that each person may possess his own vestibules free from obstruction, and that they may be the masters, and if any should wish to enjoy the profits of the vestibules without their permission, they may drive them away. Just as it is the case regarding land, and surely every—

occupant, is, beyond its use, to possess the vestibule ^A and the atrium; and we think it reasonable that this should hold good in maritime matters as well. And just as in terrestrial places it is permitted to no one to reap fruits from another’s property against the will of the owner, but if anyone does gather fruits from there, it is necessary that he either receive them by the kindness of the owner or pay a fee for the use of the place: so too in maritime matters we ordain it to be.

CONSTITUTION LVII

Regarding the measure of the distance that must exist between fishing-nets.

Since, therefore, in this matter of fishing, the custom which has seemed to hold sway—not without a sense of propriety—is to have the measure of the intervals extend to three hundred and sixty-five paces, we, honoring this with the dignity of law, decree that this hereafter shall be a law, that it may not be considered outside the bounds of what is appropriate. For even if, without being honored by this privilege, it seems good to the people of the present age that the fishing-nets should be arranged according to this measure, nevertheless, in order that it may be more secure and be more cautiously observed for all eternity, let it be law, and let the nets be separated from one another by the interval approved by custom of three hundred and sixty-five paces; and this in such a way that this measure of the interval be taken from both sides; so that, namely, one hundred and eighty-two and a half [paces] extend from the boundaries of one side, and the remaining measure extend to the neighboring one. And these things we say regarding fishing-stations established and introduced after this law. As for those that preceded this decree, even if they are not separated by this prescribed interval, nevertheless nothing shall be altered by its requirement; but they shall remain as they were established at the beginning.

CONSTITUTION LVIII

That no one should make food from blood, nor sell or buy it.

not to eat blood, and it has been ordained by the heralds of grace to abstain from such food. And thus, both in the Old and in the New Covenant, the matter being consistently judged forbidden and loathsome, men have reached such a degree of insolence, or rather madness, that they do not lend a hearing ear to either of the laws. ^A But in their shamelessness, some for the sake of gain, and others indulging their gluttony, despise the commandment and make into a food for eating that which is forbidden as food, namely blood. For it has been reported to our ears that they stuff it into the intestines as if they were casings, and offer it to the stomach like any ordinary food.

Taking this to be intolerable, our Imperial Majesty, neither suffering divine precepts to be violated by such an impious invention of men who gape only for their stomachs, nor allowing the honor of our state to be disgraced—for it is not to be endured that such a pollution should be practiced by anyone, neither for their own use, nor in such a way that others, purchasing it, are defiled by the accursed food—orders that whosoever shall hereafter be caught despising the divine commandment and making blood a food (whether he be selling or buying), shall be subject to the confiscation of his goods, and, after being harshly lashed on the body and shamefully shorn to the skin, shall be punished with perpetual exile from his country. And we further decree that in this judgment the magistrates of each city shall not be dismissed without accusation, but that they too—for this crime would not have been committed had they administered their office with the appropriate zeal—shall suffer a penalty of ten pounds of gold for their negligent and slothful supervision of their subjects.

CONSTITUTION LIX

Abrogation of the law that permits a free man to sell himself.

The same Emperor to the same Stylianus.

This law too is among those not befitting the orderliness of our state, nor worthy of acceptance, nor deserving of any place; [a law] which, for a man who is free by nature, but who in the baseness of his mind [is so far lost that he considers the dignity of liberty a disgrace]

and moves toward his own enslavement for the sake of base gain, shares in the price paid for his servitude, and permits him to remain uncorrected, does not rectify the illegality. Therefore, we do not consider such a law, which thus fixes its own matters and allows distraction to remain firm—instead of overturning that shameful trade and subjecting those who foolishly act in such a way to fitting penalties—to be worthy of the name of law, nor do we think it worthy of the respect and honor that laws ought to possess. For if, as a father is to his children, so laws ought to be to the citizens, looking only to that one thing which is beneficial and salutary for the governed, how is it just for this [law] to be counted among laws, allowing such harm and injury to befall those who have foolishly submitted themselves to it? ^B Therefore, banishing this and removing it from our laws, we decree that if anyone is seen to be so unfortunate in his mind that, exchanging liberty for servitude, he sells himself, the contract shall not stand, but shall be overturned; and both the betrayer of his own liberty and the accomplice in his crime shall be chastised with lashes to the body, and nevertheless, the liberty of the slave of his own folly shall be preserved in its pristine state.

CONSTITUTION LX

By what punishment those who castrate others ought to be affected.

The removal of the power implanted by God in nature for the procreation of the species—an act committed with no less audacity, as if it were not subject to any punishment before God, ^C when in fact it is subject to the greatest—is a matter that was long ago provided for by the wise foresight of the legislators, who enacted laws to punish it so as to cleanse our polity of such a design. Yet, I do not know how it is that, if there is anything else that must be obeyed according to this commandment and that one must refrain from doing violence to nature, men do not act accordingly, but ^D consider such a conspiracy against the species as if it were some useful thing, and through which...

^A considers the acts of those who lay snares for the power of procreation—those who mangle the members that provide the cause of human birth and attempt to introduce into the world a creature other than that which pleased the wisdom of the Creator—and deems them, if I may say so, not intolerable to overlook, but rather, by defining the penalty for this in law, we attempt, with God’s help, to repress the boldness of those who have so little regard for the divine handiwork.

The decree of previous legislators indeed sets those who dare such things to the same injury as those their victims have suffered, and it brings about that they see done to themselves what they desired to see in others; and this, in my judgment, is not entirely lacking in equity, although it is not altogether seemly. For it is not fair that, just because someone has dared to refashion, as it were, God’s creature, the avenger should immediately imitate him and refashion ^B him in return. Nevertheless, as far as the intent is concerned, it is not much—as I have said—out of place. Furthermore, it punished those who dared this impious act in other ways: it confiscated their goods and condemned them to perpetual exile; and as for the one who had suffered the injury, if he were a slave, it honored him with liberty.

Such, then, was the legislation of the ancients. We, however, in issuing a decree on the matter, forbid that the plotters against nature be punished by a similar mutilation; but we are not displeased that, provided the penalty for this crime is directed towards a more humane path, they should be subjected to the other penalties established for it.

Constitution 60

We therefore decree: first, that whoever has summoned the worker of this evil art to perform it, if he be in the register of imperial service, shall ^C be removed from that register; and then he shall incur the penalty of ten pounds of gold to be transferred to the public treasury, and shall be banished from his homeland for ten years. As for the operator of this evil art himself, he shall first be deformed by scourging and by having his hair shorn to the skin, and then, deprived of his goods, he shall be exiled from his homeland for the same length of time. But he who has suffered the injury, if he be of servile condition, shall be free from it for the remainder of his life; if he be free, just as he who permitted the injury to be done to himself is the author of what he has suffered, he shall attribute it to his own consent. Furthermore

if someone has endured exaction, and it has brought him a remedy (95), it seems to contradict neither us nor the law. For that is not to mutilate nature, but to succor it. ^A

CONSTITUTIO LXI. On tax collectors, if they have exacted more than they should, by what penalty (96) they are to be punished. The same emperor to the same Stylianus.

If mortals were willing to walk the straight path of equity, surely how great a blessing and salvation would come to common life from this. For there would be no need for legislators to display austerity, nor would avenging laws cast some into the difficulties of dangers. But now, although the path of equity is convenient and salutary, yet most men are unwilling to walk it; but because it is laborious (97) and rough, and brings misery to travelers, they turn away. For there are, there are, I say, those to whom the worst things are pleasing: and who, turning aside from the path of equity, betake themselves with an eager and greedy mind to the way of iniquity, strewn with dense thorns (by which travelers are driven into the precipices of perdition). ^B Whose reckless impulse the ancients, thinking it must be chastised, instituted to restrain by law, as if by a bridle. But as to how they strove to banish iniquity and, conversely, to establish equity... ^C And who (I ask) would not approve of what our majesty undertakes? Yet the fact that in some cases they do not establish a penalty in accordance with the desert of the offense, such a decree we refuse to embrace. For when judgment befalls the guilty according to the nature of what was committed, it is indeed a just decree: and the penalty imposed upon them is just. But when the offense is punished more severely (99) than is fitting, it is to be judged not justice, but rather injustice.

Therefore, since our predecessors promulgated a law (1-2) which, against those who are appointed to collect public tributes (whom the promiscuous vulgar are accustomed to call administrators), if they dare to extend tributes beyond the legitimate measure, inflicts the most grievous penalty (for the offense is punished by death), and because we do not think them to be subjected to such a penalty, as it is not altogether deserved, we deny its admission: and conversely we decree that, if anyone is found to have fallen into such a crime, and has dared to do it only once, that which ^D

[the act] having been dared, let him be penalized with a twofold exaction; and if he continues in doing this, let him return to the injured party fourfold what was taken, and let him be ignominiously removed from the office entrusted to him. And henceforth let this be the penalty for this offense, and let not defendants in pecuniary matters stand in jeopardy of life. ^A

CONSTITUTION LXII.

Concerning the penalty of him who has sold any public property.

Therefore, our Majesty, having noted that the decision is not brought forth from justice in those things legislated by our predecessors, in which they subject to penalties those who have dared to sell off any public property, decrees that it no longer has force in such crimes. For where is it just to anyone that, because he has sold something that brings loss to the public, an irreparable loss—namely, the deprivation of life—should befall him? In no way, therefore, is the transgression worthy of being punished by death, nor do we allow those who are caught to be judged by this [standard]; but whoever is caught selling public property, let him, having returned fourfold, be considered to have endured sufficient punishment. ^D

CONSTITUTION LXIII.

Concerning the penalty of those who transport prohibited things to the enemy.

As for us, even if this crime requires a harsh penalty, we notwithstanding grant a more humane one and decree these things: If it is the master of the ship who has undertaken ^A to transport forbidden goods to the enemy, and has not shared his intent with the sailors, let him alone suffer the penalty, and in addition to the entire cargo, provided he is not pressed by extreme poverty, let him pay a third part of his other property into the public treasury. But if the act concerns the sailors (as often happens when they conceal their wickedness), the master shall be exempt from punishment, but they shall not escape justice, but first let them be chastised with blows to the body and with shearing of the hair to the skin, and then, if they have means, let them be fined four times the value of the goods they brought in. If they are destitute and poor, let them be subject to the lashes and the ignominious loss of their hair, ^B and in addition lose their freedom by being given over to servitude. For those who, as far as it depended on them, not only lead many into slavery but also lead them into a bitter life—and this is a humane and moderately considered exaction—to be deemed worthy of the life of servants. But these things apply when there was no common conspiracy in the misdeed. If, however, there was a common plan and malice in committing this, just as they are fellow-workers in evil, so too shall they be subject to punishment, following the methods we have decreed for the punishment of each party.

CONSTITUTION LXIV.

Concerning the punishment of those who conceal shipwrecked goods.

The same emperor to the same Stylianus. ^C

That which I wonder at again and again is how the man who conceals things from a maritime calamity seems to have sinned so greatly that such an offense ought to bring death upon him. That he is committing no moderate sin by depriving those of their own—to whom perhaps even from his own means a man who has attained to mercy might offer relief to soothe the pain they carry in their hearts (seeing as it is natural for them to suffer great loss and the deprivation of their belongings)—this is among the things that are manifest. But that those against whom the shock takes place should be deprived of life, this I cannot comprehend. For what has been taken that is so great that it could be compared to a soul, for the loss of which he is condemned? He is indeed a most wicked and sacrilegious man who abandons himself to such gain, and ^D indeed he who (as is done by some) despoils the dead. Nevertheless, such a crime does not merit that punishment. For a material and

nor is it fair that the penalty should have such an immense excess, even in matters concerning material property, so that injustice might not, as it were, take a turn through an excessive amount; and how could such an immeasurable penalty befall those who hide the wreckage of shipwrecked persons, when there is no excessive amount to be expressed by word that refers the exaction to the crime? We order, therefore, that this shall no longer be judged in this way, but that the person who has hidden the property shall pay four times the value of the item that was kept back, and the offense shall be determined by such a penalty.

CONSTITUTION LXV

Regarding the punishment of those who use sorcery (12-13).

frequently happens to fearful people, who, while they refuse to receive blows on their hands, expose their heads or bellies to them instead.

Truly, if anyone is caught having used incantations in any way, whether for the sake of restoring or preserving health, or for the purpose of averting calamity from crops, he is to undergo the penalty of apostates and suffer the ultimate punishment ^B.

CONSTITUTION LXVI. On kidnapping.

Just as it is not good for the scales of justice to incline to mercy more than is proper, so too it is not honorable for justice to impose on those who err a punishment more severe than the sin requires. For that—namely, untimely pity—in those towards whom it is not religious to exceed what is seemly, breeds contempt and a more ardent promptness for daring evil deeds; and to strike a sin with a punishment more severe than it deserves, that is not an execution of justice, but an attack on an unjust matter under the guise of justice. For to punish the delinquent not according to the manner of his offense is to inflict injury, and is by no means to practice justice. And to what end was this said? Because the law—I know not how this once came to be fixed—punishes with death him who has abducted another’s slave. In this, it does not weigh the punishment with the sin. For since that which cannot be recovered is not a total loss, it is not fair that the punishment of death be brought against him who took it, and that he be subjected to such an irreparable loss.

Therefore, because we have noticed that it is unjust that such harsh penalties be exacted from those who have not committed acts worthy of death—a custom that the law has ignored (so that it does not deprive the kidnapper of life, but punishes him in another way)—we, casting out those requirements from our legal constitutions, confirm by law what pleased custom; and we command ^C that if anyone is caught having kidnapped another’s slave, he must be compelled to return the same, along with its price, and also whatever accrued to him from the labor of the same, and as much as the master could have received in his name had the slave not been lost; and beyond these, the penalty is not to be aggravated for those who have erred. For in this way, the one who lost the slave is sufficiently compensated for his loss, and a sufficiently great penalty is inflicted on the thief: inasmuch as the former receives back the slave with the addition, and the benefit which he would have had from the slave had he not been kidnapped ^D...

inculcated, that being deservedly punished ^A by both the double restoration of the theft and by being deprived of any gain from the servitude of the person stolen.

CONSTITUTION LXVII

Concerning those who cross over to the enemies and return of their own accord.

Simultaneously, excessive austerity and severity, and likewise immoderate leniency and clemency, equally subvert what is useful. For both the one who uses extreme harshness and the one who bears an unmixed leniency, whichever of the two may be in charge—whether of one person, a family, or a city—will administer affairs to the detriment of those whose governance is committed to him. For it behooves him who is to govern rightly, just as moderate and salubrious places have ^B their atmospheric conditions mixed in due proportion, so also must he himself, by a mixture of his attitudes adjusted for the utility of administering affairs, show himself to be moderate; and he must be neither heavy and intolerable through harshness, nor contemptible and inept at governing through an unseemly leniency. Now, what we say concerning the air, this certainly ought to be maintained entirely in the laws as well. For it behooves the laws, since they are truly the leaders of the commonwealth, to preserve the mixture I spoke of, and not to look toward severity or leniency beyond measure, if those who live under them are to be healthy. These things are said by us with an eye toward the harshness which the law enacted against those who desert to the enemies ^C reveals. For it wills that the deserter, if ever he should be moved by a sense of repentance and wish to heal his previous transgression by returning to his own people, should be exposed to be devoured by beasts or be hanged upon a cross. This seems to me to be the cause of much harm to the commonwealth, and to bring about a great contrariety in the reasoning that directs the way toward salvation. For it imposes a necessity upon those who have deserted to the enemies never to remember their own kin, nor to conceive any desire to return to their fatherland. For there is no one at all who, knowing that he will be met with such a punishment, would not prefer to live among the enemies rather than suffer such a bitter death in his homeland.

Therefore, this harshness—that I might not call it iniquity (for ^D how is it not iniquitous to punish so bitterly one who has sinned, and then from that very sin has returned to a sensible state of mind to remedy the transgression?)—we expel from the most just laws, and we command: if any deserter should return to his fatherland, having done this once, let him obtain pardon; but a second time, for a three-year

if he does so again, he shall be sold into three years of servitude; but if he deserts a third time, upon his return he shall be condemned to perpetual and eternal servitude. For a man of such uncertain counsel, and so inconstant, is unworthy to enjoy liberty. But if a deserter does not return of his own accord, but is captured by others and brought back to his country, it would be neither unjust nor cruel, especially if he has previously stained his hands with civil blood, to punish him with death as an enemy.

CONSTITUTION LXVIII.

^B To the ancient legislators, since the guardianship at that time was—as one might expect—uniform and simple, and only those who undertook the care of the wards were accounted guardians, it seemed proper to decree that neither monks nor anyone whom the sacred order includes should perform the duty of guardians. And indeed they decreed this rightly. For they understood that those who are consecrated to the divine ministry ought to be free from the occupations and troubles of external matters. No one is ignorant of how much the care of feeding and otherwise governing children distracts the minds of men, and how it hinders them from being able to worship God as they ought. Since, therefore, there is no small difficulty in this matter, and especially because of its duration in time—for they are bound for their whole life, for the most part, held fast by these laborious cares—they rightly (as I have said) promulgated that decree.

^C But because later generations have not restricted the term "guardian" only to those who administered the guardianship, but also began to call by the name of guardians those to whom testators, moved by a good opinion of them, commit testamentary instructions concerning their affairs, and entrust the execution of these after their death; and because a doubt has consequently arisen whether monks and those who have entered the sacred order, since said decree seems not to admit it, can undertake this assigned care: we, exercising discrimination, sanction that they are to be entirely excluded from that guardianship ^D to which the ancient times, looking toward the promulgation of the law that precluded access to said persons, provided the occasion.

in this passage to the aforementioned persons, and that it be permitted also for monks and men in holy orders to share in the later form of guardianship. For the cares ^A of this office are not so heavy as to distract one from divine ministry and bind them entirely to themselves. Besides, as these men live more cautiously and more divinely than those who are impurely entangled in profane affairs and wallow in earthly filth, there is more hope that the commands of the departed will be better and more cautiously carried out.

CONSTITUTION LXIX

Concerning the making of a testament by the blind, the illiterate, and women.

The same emperor to the same Stylianos. ^B Since there is a dispute regarding how the blind should be allowed to make a testament, and this ambiguity arises both from the legal texts (seeing that the laws hold different views on this matter) and from the custom that now prevails, I have not thought it inconvenient or foreign to our purpose to examine and clarify this. For one law prohibits a blind man from proceeding with a testament in the mysterious manner, and establishes that it shall have no validity unless it is guaranteed by the presence of witnesses, or that the things ordered have come forth from the mouth ^C of the blind man or have been echoed in his ears (for it does not deem it sufficient that their certainty be reinforced only by a written document); while another law opens a wider path for women and illiterate men to occupy themselves with more mysterious testaments, requiring nothing more than that the testator, if he is not entirely ignorant of letters, should secure the testament with his own signature, or if he is unable to provide such security, that he should take someone else to sign for him. And so, the laws are indeed in conflict ^D concerning these matters.

For if women and those illiterate in letters are allowed, in the traditional manner of the common perception, to have their faith rest solely upon the one who writes the document, why should the blind man, for the same reason, not have the unhindered right to dispose of his property? Furthermore, custom is seen not only to conflict with other legal principles, but often to struggle against the law itself. For it recognizes that the dispositions of women, of those not guided by letters, and of the blind, even when made in secret, are not to be stripped of their force. ^B Since, therefore, these things are so, we also decree that secret testaments, whether they belong to the blind or to any other persons, shall obtain authority; and we further decree that, before the witnesses swear their oath, the signatures of those who drafted the testaments shall be brought forward, testifying that they have truly written down exactly what they heard from the speaker, the very tongue of the testator himself having uttered it. And if, afterward, it is proven that any falsehood was committed, the penalty shall be the confiscation of property for those of them who are wealthy, and for those who are poor, intense scourging and exile shall be the punishment for the offense. To this, we add the following: if ever the testament requires oaths for its confirmation, as frequently happens, those who wrote the testament, together with the witnesses who are to swear, shall corroborate the faith and truth of the matter through their own oaths. ^C

CONSTITUTIO LXX. Concerning brigandage.

The same emperor to the same Stylianus. Where participation in a common condition or state joins people together, you will see that there is everywhere a community of intent among them. Thus, in business, partners share equally in profit and loss; and companions on a journey, when they encounter some windfall by chance, even though they may not have noticed it at the very same moment, nevertheless share the right to the discovery between themselves. And in the same way, comrades-in-arms, even if they all did not rush against the enemy with equal zeal and force, nonetheless carry away the palm of victory equally. Therefore, since it seemed just to the ancient lawgiver that those who join together by malicious consent and unite in some action for which a penalty is established by law—even if, for example, a kidnapping or a parricide—are subject to the same penalty, whether it be a woman...

the plunder be what it may, whether it be the destruction of a father or of another person, even if all did not contribute equally to the execution of the deed. ^A Therefore, we also, concurring with those things which have been previously decreed concerning those who with one intent and in common form a design against the life of a human being, do ordain that all, however many they may be, should be subjected to the same punishment, even if the act was not performed by all in the same way. For just because someone did not himself provide the hand to assist in the slaughter, he shall not on that account be able to depart innocent. For what if he did not use his own right hand, but spurred on the right hand of another toward the destruction? For it is clear that the hand which accomplished the death was moved by the common perversity to dare the deed. For it would not, had the co-operation of the others not strengthened it, ^B have been seen ready to serve the murder. For this reason, as it has been said, we ordain that all undergo the same exaction of the penalty, even if, as is likely, the death occurred from a single blow, while the hands of the others did not join in it.

CONSTITUTION LXXI

Concerning those who are to build in arable lands and vineyards.

The same Emperor to the same Stylianus. ^C We have judged it necessary to honor with the authority of law the most excellent and most equitable decree of our father of eternal memory and emperor, concerning those who wish to construct new houses in places which until now the plow has cut or where vineyards have stood, and concerning the interval of distance at which this new construction should be situated from the neighboring boundaries; because it was not transcribed by him into the body of the laws, it ought to be decorated with the authority of law. We ordain, therefore, according to his opinion, that those who have it in mind to construct new dwellings in arable places, if the abundance of the land provides it, [shall build] at a distance of two bowshots from the neighboring boundaries. ^D

...to be discharged in the manner of an arrow; but if the narrowness of the space between the sites does not allow for such a distance, let it be measured even by the length of an arrow-shot ^A. But within the stated limit, no one is granted permission to perform such a renovation of buildings. And the reason for this is of minor consideration, for harm also approaches the crops of neighbors along with the house that is near.

CONSTITUTIO LXXII

That agreements made without a penalty clause shall be valid.

CONSTITUTIO LXXIII

That no one shall dwell with women in the upper chambers of churches.

A matter which was committed in a detestable manner even before just laws forbade it, and which is attempted even more detestably after the prohibition (I refer to the fact that some cohabit with women in the upper rooms of churches, which the common people have come to call catechumena), is not worthy of being overlooked, nor shall it be overlooked by us. Now this audacity was, I know not how, unpunished until the Sixth Synod; but at that holy synod, the matter being ^A deemed worthy of oversight, it showed such inhabitants, if they were priests, to be liable to deposition, and imposed excommunication upon laymen. But the decree of the priesthood did not suffice for the complete avenging of the churches. For since the same audacity remained even during the time when our father, renowned among kings, held the scepter, the royal hand and a decree were required to expel this sort of rashness from the holy houses.

Wherefore, desiring that this should prevail from now on, we decree that no one, neither priest nor layman, shall in any way reside with women in the so-called catechumena. ^B And if anyone be found thus profaning the holy place, he shall be disgracefully expelled therefrom by imperial hand, and he who provided such a residence (whether he be a priest or some other person who has the charge of the temple) shall himself also be in danger, on account of such contempt and the profanation of sacred things, by being deprived of that charge.

Constitution LXXIV.

Since in the matters which are enjoined concerning marriages by the holy and great Sixth Synod in the ninety-eighth canon, there seems to appear a certain contrariety to what is deemed right by civil law—for the synod altogether forbids a betrothed woman, while her betrothed is still among the living, ^C to be joined to another for carnal union, defining the matter as adultery; whereas the civil law does not deem such a dissolution to be a great crime, but limits the liability only to the penalty of the earnest-money and the fines, if the blessing accustomed to be performed over her be celebrated earlier than the marriageable time—since, I say, the point of the contrariety is observed to be of an accurate logic, inasmuch as that which follows…

penalties; since, therefore, a more acute reason discerns the wound ^A of contradiction from this source (because if they are separated after the blessing, in that case the true dissolution of the betrothal must be established), we decree that the blessings must not be celebrated before the legitimate time for matrimony arrives, which expects the fifteenth year for men [81-82], and the thirteenth year for women 83. For thus both the blessing will have taken place in accordance with reason, and the dissolution of those who have joined together, being a perfect marriage, not being contrary to the Church, will also obtain judgment from civil law.

CONSTITUTION LXXV.

That he who is twenty 84 years old may be created a subdeacon.

If the sanction of sacred decrees, when passing over to civil matters, often has more authority in them than the civil laws themselves that treat of the same matters, how much more shall sacred decrees prevail over civil laws in their own matters? But what is it that I say? The Sixth Synod 85 ordains that a subdeacon may be ordained at the age of twenty; but the civil law, contradicting this, orders that twenty-five years be measured out. ^B We, therefore, considering it proper that the sacred order follow the sacred law, decree that those worthy of this office may be admitted to the subdiaconate in their twentieth year.

CONSTITUTION LXXVI.

On the penalty 86 for priests giving false testimony.

Divine decrees which are asscribed to the heralds of God (I mean the sacrosanct apostles 87) strip priests caught having sworn falsely of their sacred dignity. But the laws that govern the civil commonwealth 88, when they turn their attention to the regulation of this matter, divide false testimony in two: and as for that which they find to be false testimony in a criminal case, they punish it with removal from the sacred order; but as for those who have falsely testified in a pecuniary matter, they punish them by relegating them for a time, but not by removing them entirely. ^{C D}

We therefore command that those who have sworn false testimony, whether in a criminal or a pecuniary case, be removed from the ranks of the unholy ^A false witnesses; and if the oath did not appear to bolster the false testimony, those who have attempted to clothe falsehood in the dignity of truth shall be relegated for three years (the relegation shall be to a monastery, where it will be incumbent upon them to live according to a stricter way of life), and having performed the appropriate penance for their sin, they shall be restored to their proper rank.

CONSTITUTION LXXVII. Regarding the penalty for forgers

CONSTITUTION LXXVIII. That senatusconsulta shall no longer be made

as we did, so doing here also, we ordain that the law which gives to the senate the power of passing laws be separated from the laws of the commonwealth ^A; for since the utility of the things to which the imperial majesty has claimed for itself the administration originally belonging to the senate has been condemned, it ought to be judged useless; if it were joined with useful things, it would be both improper and superfluous.

CONSTITUTIO LXXIX.

CONSTITUTION LXXX.

providing that the remnants and fragments [of purple] ^A which offer utility and are not inconvenient to either the seller or the buyer should be prohibited in trade, what honorable reason, free from the envy of subjects, can be brought forward for this legislative decree? For what opposition or detriment to the preeminence of the imperial majesty results from these things?

Not being pleased with that decree, therefore, we determine that purple remnants and fragments which provide a semblance of magnificence or any other permitted use to our subjects may be both sold and bought. For it befits the imperial majesty, although it affects its subjects with benefits in many other ways, not to begrudge them their own magnificence.

CONSTITUTION LXXXI.

We therefore decree that the making of work from gold and stones is not to be prohibited in a simple manner, but rather those constructions which are permitted solely to emperors, and the use of which targets the grandeur of the imperial majesty and its needs. If, therefore, anyone [should possess] either a sacred monument or some other thing not of private status and value that exceeds [ordinary works]... ^D

^A [to be able to accomplish] anything that is not above his private dignity and honor, let him have free will in the matter.

CONSTITUTION LXXXII.

Concerning a testament that has been opened

The same emperor to the same Stylianus. Many things which come to pass by some chance of fortune are, before they have been carefully examined, noted as crimes; yet the same things, when later examined with greater accuracy, are absolved from the stigma of infamy. And what is the nature of this which I say? Very often, not by intent but by chance, someone is injured by the throwing of iron or a stone. Before this is discussed, he who threw it is judged guilty; but when a diligent examination is held concerning the same, no just reason is found as to why he should be blamed. Wherefore, things which happen by chance should be judged by the circumstances rather than by the nature of the act itself. But to what end is this said? Because sometimes, when necessity demands, a testament is opened, and since it happens that it is sometimes left unsealed afterwards, or time itself (as is its wont) wears away the seal and it is deprived of the faith it would have had if sealed, and because of this a certain uncertainty besets a testament of this kind, it has seemed good [to us] to assist such testaments by another way of confirming their validity.

^B And we order that, even if the seals of a testament do not survive, if the signatures bear sufficient witness to the testament, the faith of the testament shall in no way be undermined because of that fact. For just as signatures confirm testaments not yet opened, even if (as easily happens) the seal may not be preserved intact, so we deem it just that those which were opened later, or which for reasons of negligence remained unsealed, or whose seals perished through the length of time, should not be deprived of their validity, provided that faith in them survives through the signatures. Moreover, we further ordain that if, by the negligence of a judge, it happens that a testament is not re-sealed, a penalty of twelve pounds of gold be imposed upon him for his negligence.

CONSTITUTION LXXXIII.

That money may be legally lent at the interest of a triens

The same emperor to the same Stylianus. If it were the case that the mortal race were so ruled by the laws of the Spirit ^{C D}

if human affairs were regulated by human precepts, there would be no need of instruction. But since it is not given to everyone to rise to the height of the Spirit, nor to accept the resonance of the divine law—and those whom the ascent of virtue leads there are very few indeed—it would be well if one lived at least according to human laws. The so-called interest on loans is everywhere condemned by the decree ^A of the Spirit, and our father of eternal memory, the emperor, aware of this, decided to forbid the payment of interest by his own decree. Yet, because of poverty, this matter did not turn to the better, as the legislator had intended, but rather moved toward the worse. For those who were previously ready to lend money in the hope of interest, after the law was passed and they saw that they could derive no profit from the loan, became uncharitable and pitiless toward those in need of such kindness. ^B Indeed, they even gave occasion for false accusations and, as might be expected, for the breaking of oaths; and altogether, because of the wickedness rampant in life, the virtue of the law not only failed to benefit but even caused harm.

Since we cannot blame the law itself (heaven forbid)—because, as I said, human nature does not reach its height—we stop that fine ordinance, re-establishing that the use of borrowed money may proceed with interest, as seemed best to the older legislators; I mean the rate of one-third of a centesima, which is one siliqua for every single solidus that occurs annually as profit to the lenders. ^C

CONSTITUTION LXXXIV

The same Emperor to the same Stylianus. Regarding the things decreed by our predecessors concerning the magistrates of the imperial city—namely, that the magistrates of the Queen of Cities should neither buy any movable or immovable property, nor proceed to build without the permission of the sovereign; and furthermore, that if any gift should come to a magistrate during his term of office, it should not be valid, except if the donor, after his term of office has ended, confirms it by written authority, or if five years ^D have passed after his term of office—these provisions, although in consideration of this, lest

inveniat; for even if they were established on a sound enough basis to prevent the violent from finding a place, yet because one can easily block the way to violence through another method, they do not appear necessary to us. ^B Wherefore we wish for these to be abrogated; and this, especially because since the transgression of these laws has been left unpunished day by day, and the penalty has ceased to be exerted, they had no force even before our edict. And for what reason are they not necessary? Because to everyone, both poor and rich—since the possibility of imperial access and petitioning is open to those who dwell in this city—it is permitted, if anyone suffers violence, to petition the emperor so that he need not be totally vanquished by a violent magistrate. Therefore, what necessity is there, just as in a country destitute of all aid, to maintain such strictness in a city where aid is abundant? We decree, ^C therefore, that according to the current state of affairs, magistrates may both buy and build, and remain free from accusation in the receiving of gifts that are spontaneously offered, since it is an open right for those who suffer violence, whenever any such thing happens, to escape it by petitioning the emperor. Regarding provincial magistrates, however, it has seemed good to us to enact furthermore that the prefect, during his term of magistracy, shall neither buy anything, nor build anything for his own use, nor finally accept gifts freely. Other minor magistrates, however, are to be either removed or fulfill their administration according to his judgment, after the matter has been reported to the prefect.

CONSTITUTION LXXXV.

Since we have not prescribed what should be determined concerning the donation propter nuptias (on account of marriage) for husbands left by wives with children—a donation which custom grants to wives who predecease their husbands—and as we decide to innovate nothing against this custom, we decree that, just as it has been established by the laws until now, the donation propter nuptias shall be given to women. To men, however, if they enter into a second marriage, it shall not be permitted to receive anything; but if they honor the first marriage, in remuneration of this honorable intention, ^D the portion of a child shall be set apart for them. And this portion shall be subject to calculation, such that if that donation

reaching equality with the dowry or exceeding it, the recipient should be content with this, so that there is either a profit or at least no loss sustained; but if the portion does not reach that amount, but falls short of the dowry, the husband should neither give anything of his own nor take anything from the wife’s property. ^A

CONSTITUTION LXXXVI.

Regarding the penalty for bishops, priests, and clerics who engage in legal advocacy, giving surety, tax-farming, or other similar activities.

should they be detected as defiling themselves, they shall be completely removed and cease from sacred ministry, as unholy and unworthy.

CONSTITUTIO LXXXVII. On the penalty for ecclesiastics who play at dice.

The same Emperor to the same Stylianus. Truly, those men of the sacred order who occupy themselves with dice do not even dare to account this matter as worthy of any slight penalty. For how could they? Whereas they, who ought to be steadfast, with a well-ordered mind and an immovable intellect fixed upon divine contemplation—as much as is possible for human nature—should remain inseparable from the highest Good, they instead hasten toward childish games. It is fitting that such men be cut off from the priesthood, in accordance with the divine decree of the holy Apostles. ^B However, since this very prescription also allows for mitigation, in that it adds that those who do not desist will suffer punishment, we also determine that those who pollute their sacred lot with the game of dice be relegated to monasteries (yet this relegation shall be measured by a three-year period), and when the offense is seen to have been sufficiently expiated, they may be restored to their former state. But if they should again begin to waste their time foolishly at the dice-box, let them be completely expelled and cast out from their sacred ecclesiastical rank as expiatory offerings.

CONSTITUTIO LXXXVIII. On the fixing of feast days for certain eminent men in the Church.

The same Emperor to the same Stylianus. ^C To the venerable decree of the holy Apostles, which was promulgated to the glory and honor of the most sacred days by which we celebrate the Lord of all, and which also signifies the consecration of those very famous lawgivers and other victorious champions who with their own deaths put impiety to flight, it is fitting that this also be joined: namely, that the memory of those divinely-speaking men who shone forth in the Church after them, and who, like lamps, illuminated the firmament of the Church with their deeds and teachings, should also be solemnly celebrated. ^D Fulfilling what is lacking, we decree that the days of the sacred consecration of these men also, with befitting honors, be—

to be adorned with sacred honors. Among these names are: Athanasius, ^A that renowned figure among the high priests of God; Basil, the royal ornament of the Church; Gregory, he who is named for theology; Gregory, that sweet and illustrious fountain of the Church; John, the golden mouth of the Spirit; and together with these, Cyril and Epiphanius, whose achievements and glory are rivals to those already mentioned.

CONSTITUTION LXXXIX

That marriages are not to be valid without the sacred blessing.

The same Emperor to the same Stylianus.

Just as antiquity disregarded the affairs of adoption, which are matters of indifference, since it thought that they could be performed without prayers and sacred rites without seeming to neglect anything, so too it seems it overlooked the precise state of marriages and allowed them to be contracted without the customary blessing. But while for the ancients some pretext for such an intention might perhaps be found, for us, by divine grace, when matters have been established for a much more orderly and sacred advancement of life, it is not fitting that either of these things should be neglected.

Therefore, just as we have decreed that in the adoption of children the adoption is to proceed with sacred invocations, so too we order that marriages be confirmed by the testimony of a sacred blessing, so that where such ^B fitting arrangement is not performed for those wishing to live together, the union shall not be called a marriage at all, nor shall it be accomplished ^C

by the custom of marriage, we may enjoy our right. For you will find nothing between celibacy and marriage that ought not to be reproved. Are you held by a desire for conjugal life? It is necessary that you observe the laws of marriage. Are the annoyances of marriage displeasing to you? Live as a celibate, and do not adulterate marriage, nor cloak your guilt under the false name of celibacy.

CONSTITUTION XC

CONSTITUTION XCI

From the same indifference, the law appears to make judgment regarding concubines, allowing those who do not blush to wallow in such shameful concubinage. ^A

Therefore, let us not allow this error of the legislator to bring disgrace upon our republic, but let that law be silent forever. For by it we are forbidden not only by the dictates of religion [(63)], but also by the injuries to nature, according to divine and Christian-fitting precepts. And indeed, if you have a fountain, you are reminded by divine precept to drink from it soberly; for what reason, when it is permitted to draw pure waters, do you prefer the mud? But even if you do not have a fountain, you still cannot use forbidden things. Moreover, it is not difficult to find a life-companion.

CONSTITUTIO XCII

Concerning the punishment of one who has deliberately blinded another.

The same emperor to the same Stylianus.

Although a judgment was rendered by us regarding the one who gouged out another’s eyes with most violent hands, ^B differently than the ancient laws [(65)] ordain, while we were present at the trial, it was never our intention to transform that judgment into law. For, moved somewhat by mercy (as the affair itself indicates), we judged in that manner at the time: because eyes cannot be restored to one who has lost them, I did not think that one who had caused such damage should be cast into the same blindness, even though the one who suffered such a thing deserved to have it inflicted upon him. In the meantime, however, I established such a penalty that he who gouged out the eyes should bear the marks of it, and that he ^C to whom they were gouged out might, in such a calamity and such profound blindness, have some comfort from the labors of him who inflicted it upon him. But although it was so judged, it was not, as I said, my intention to make a law out of a decided case. But since he who is numbered among our sacred offices (whose request, on what grounds could I reject?) asks that this sentence, because it is mild, be placed among the laws, so that hereafter, if ever such a thing should happen, the matter may be judged just as the penalty for the injury has been established in the present instance, we obey the petition and bestow the authority of law upon this judicial decree.

If, therefore, anyone should injure the sight of another, we command that, if he has removed one eye, he shall be deprived of one in the same way and ^D undergo the punishment of retaliation. But if he has laid his wicked hands upon both eyes,

^A since here the equality of the penalty is of neither use to the injured party (for what profit is there for one living in darkness if another also has the same darkness?)—and for the one liable to justice (even if not unjustly, still life is unlivable)—since these things are so, we command that the legal retribution not proceed according to the same ratio, but rather in a different way, through which both the one who has acted wickedly shall be punished, and the one who has been maimed shall receive some profit. We decide therefore as follows: let him who has brought the loss of both eyes upon someone himself be deprived of one eye, so that he may bear a mark of his own wickedness; and since he also owes the cutting off of his unholy hand, instead of the penalty of the hand, let him be mulcted of two-thirds of his property, and let this be received by the one whose eyes have been gouged out by him as a consolation for his life. And thus, ^B both a small alleviation of his calamity shall be felt by the blind man from the provision he receives for the sustenance of his life, and the perpetrator, as has been said, shall suffer as punishment for his wickedness both the cutting off of one eye and the removal of his property in place of the mutilation of his hands. And in this manner, if the defendant is wealthy, let the penalty proceed. But if he is completely poor and leads his life in straits, and cannot provide anything to the one who has been thrust into misery by his violence as a compensation, then let him be both a companion and sharer in the same calamity and live blind, being deprived of both ^C lights. But if any others have assisted the wrongdoers in their evil deed, if they indeed laid hands upon the perpetrator and together gouged out the eyes, let them be punished in like manner; but if they refrained from laying hands upon the eyes, but provided some other assistance to the wicked plot, for them let the penalty be limited to bodily scourging, shearing of the skin, and a fine of a third of their property, but let the actual perpetrators of the blinding be subject to the aforementioned punishments.

CONSTITUTION XCIII

That if a bride is discovered to be pregnant by another, the betrothal may be rescinded.

^A they declare—though I do not know how it is that they did not make absolute provision concerning this matter—that they either did not wish to include this within the causes for the dissolution of betrothals, which we are now about to decree, or that the sort of incident that has now manifested itself in the present case did not yet exist, thereby requiring a statement of the law. We, therefore, filling in what is lacking in this part, establish the rule regarding betrothals with precision.

The ancient constitution, indeed, dissolves a betrothal for various causes (I speak of a difference in religious belief, or if the mind should be afflicted by a state of madness, and still others: for if either of the parties who have entered into the betrothal is liable to any of these causes, it commands that the union be broken). But that which has now been deemed worthy of our consideration—whether it had not yet occurred at that time, as we have said, or whether the legislators thought it would not happen, or for some other reason it was left out in silence—is not included among the aforementioned causes. It is of this nature: it has been discovered at the time of betrothal that a betrothed woman is pregnant by another man through stolen embraces, ^B while in the meantime she puts on a show of betrothed chastity. This is indeed the point which is not covered by the ancient laws.

We, therefore, adding what is wanting, decree that they shall be separated—those whom the opinion, but not the truth, of a betrothal has joined—not only on account of a difference in religion, nor on account of mental derangement or other causes, but also on account of this, than which nothing is more opposed to matrimony. For how can a betrothal be true where nothing true or genuine is to be seen? Where a crime of harlotry ^C presents itself, where there are causes for dissension and hatred, where there is an alienation of souls (evils which, along with the foreign and alien seed, are all received together): how can there be matrimonial concord there, how can there be pure and betrothed love? For how can any man be expected to foist another’s offspring upon himself? Reason does not permit it. Nor, similarly, is it just that one who has decided to receive his bride into his home in the hope of the solace of an honest and chaste marriage, if she should insult the laws of matrimony and, by playing the wanton with others, render the hope of that solace vanish for him, should be ^D obligated to acknowledge as his wife that woman who possesses such harlot-like facility.

CONSTITUTION XCIV

CONSTITUTIO XCIV. Abrogation of the law concerning the consulship.

The same emperor to the same Stylianus. Since our purification of the laws ^A has this goal proposed for itself, that it should remove from the legal corpus not only those things which periodically undermine the state of affairs, but also those which, buried by long silence and utterly useless, seem, as it were through decay, to be no longer touched in public use; it is consequently fitting that the law which treats of the consulship ^B, as relevant to the republic in nothing at the present time, should be removed along with other useless things from our legal framework.

Once, indeed, the consular dignity was venerable, and rendered those who assumed it venerable and outstanding in magnificence; and for that reason, those to whom it fell to hold the consulship, wishing to reward the republic for the honor they received from that dignity, liberally bestowed gifts upon the populace without distinction. At first, indeed, the measure of such munificence was left to the judgment of each; but afterwards it was decided that it should be circumscribed ^C by a certain measure through a legal decree. And so long as the majesty of the consular dignity flourished in the republic, it is apparent that this was observed.

Now, however, the passage of time—which changes all things—has transformed this consular magnificence from its former glory and breadth into an abject state; and as for those who proceed to it, they are at times unable to suffice for themselves, let alone distribute anything to others. Therefore, we remove from the legal constitutions by the decree of our majesty that law concerning the consulship, which—as I have said—has been occupied by a profound silence and is mixed in uselessly with other idle matters.

CONSTITUTIO XCV. Concerning the crust of earth torn away.

The same emperor to the same Stylianus. The needs of practical affairs have provided their origin even to the more ancient laws that were born before. For legislators, by examining individually and accurately the things that occur in common life, enact laws according to their nature. Since, therefore, out of the needs of common life...

from the events of life, as we have said, the occasion for laws arises, and seeing a new need through some novelty of a situation that cannot be referred to any ancient law, so that if at any other time such a thing should happen, it may be possible to judge the event legally, we set forth a law for the settling of the matter.

^A What then is this law? When fields of different ownership lie adjacent to each other, and one is situated in a higher position while the other is depressed and lies in a level area, if a portion of the higher and overhanging field, whether along with trees or without them, breaks off and covers the lower field that has received the ruin, the owner of the underlying field should not simply have the authority to claim the broken-off material as his own, on the ground that it lies within his own boundaries, nor, on the other hand, should the master of the higher field who has suffered the break-off ^B contend for the ownership of the boundaries that have received the falling ruin. Rather, let the owner of the lower field allow the lord of the higher field, if he wishes to recover and remove the broken-off material (whether it be planted with trees or vacant of them), to do so; and let the latter have the choice whether to recover the material and restore it to his own boundaries, as he is accustomed to do, or indeed (if he does not wish to remove it) to abstain entirely from both the material and the boundaries that have received it, and not to provide trouble for the lord of the field that received the fallen material. ^C For just as when houses are adjacent to each other, and the structure of one overhangs while another is lower and pressed down, if it happens that the higher house collapses into the lower one, its owner must either recover the fallen material or, if he does not wish to do so, cede it entirely; nor should the house that received the fall trouble its master, so here too, applying this to the consequence and example, it is fitting that the same be observed and kept.

CONSTITUTION XCVI.

The same emperor to the same Stylianus.

What offenses are committed solely by the wickedness of the mind and can be excused by no natural necessity, ^D to these neither should pardon be granted nor should the infliction of punishment be denied. But those things which do not proceed entirely from malice, but have a mixture of the violence of nature, these will certainly not be denied pardon by those who desire to judge according to the measure of the power existing in nature. From

By this reasoning, I conjecture that the civil and the sacred decree, while they rule on the violators of sepulchers, do not contradict one another. ^A For the civil law, looking only at the perverse intent, granting no pardon whatsoever, punishes that transgression; but the sacred law (looking, if I am not mistaken, at the poverty which miserably vexes human life and often compels the oppressed to dare things not to be dared) has not appointed a penalty for those caught. We therefore, adapting ourselves to both decrees, and joining punishment and pardon together as much as is possible, decree that those who have dared this only once shall be struck by a mild and merciful sentence: but those who, out of that clemency, seize an opportunity to sin again, and, having learned no prudence from this, do not desist from wickedness, shall, with no petitions admitted, undergo punishment. That punishment shall consist in the lashing of the back ^B and the shearing of their hair.

CONSTITUTIO XCVII. That an oath be taken at the contestation of a suit, and at the beginning of magistracies.

Although the law, which mandates an oath at the beginning of magistracies and the contestation of suits, may seem in some way to contradict the divine command which prescribes that we should avoid swearing ^C entirely: nevertheless, if one examines the meaning of the words, one would perceive that it was not enacted in opposition, but that it endeavors to bring about through the acceptance of the oath the same thing which the sacred law wishes to achieve in its prohibition of swearing. For the one, by completely closing off the path to falsehood, forbids swearing altogether; the other, desiring this same thing, takes the oath as an ally to drive away falsehood. So that we, too, not fixing our thoughts on the form of the words but on the underlying purpose, deemed it right not to disdain the civil decree as though it fought against the divine and Lordly commandment, but to preserve its honor, as though it tended toward the same end. Furthermore, we also feel this: that the Lord’s command was not issued ^D simply for the regulation of the affairs of common life, but for the establishment, for those who desire to ascend to that blessed height, of a more perfect

to that blessed height, for those who long to ascend. ^A And as with other matters, such as, "Do not be anxious for your life, what you shall eat; and do not lay up for yourselves treasures upon the earth," and whatever else is of the same strength, these and similar things bring a state of mind set apart for those who are more perfect.

For this reason, preserving the appropriate power of the law unchanged, as I said, for the citizen, we also decree that those who are entering into the post of a magistrate, or entering into the trial of a disputed matter, should be confirmed by oath, that they will honor the truth over falsehood, and in no way, having turned aside from the straight path, will they proceed onto the crooked path of deceit.

CONSTITUTION XCVIII

Concerning the penalty for eunuchs if they take wives.

The origin and establishment of the laws proposes for itself a target, both that the state may be rightly constituted, and that it may offer help to nature, which is sometimes treated unjustly. It is therefore just, that now also concerning the question raised (which is, whether it is permitted for eunuchs to be joined in marriage), a law should be brought into being. But before that law is proposed, it is worth while to examine the matter, and to see if it is possible for such a union to be called a marriage—or rather, if it is at all appropriate that whatever is performed in marriage (which are the sacred ^B prayers, 11 the offering, carnal delight and pleasure, and whatever else is accomplished in marriage) should be performed in it. For the priest, in imitation of the blessing from above from the Creator, who joined the sexes for the multiplication of the races, stands and pronounces the sacred words of blessing, 14 while the pleasure and rejoicing that proceeds from human beings 15 looks toward the end of the begetting of children and the progress of the growth of each race. For both the parents of the betrothed, while they are in hopes of seeing the offspring of their own bowels, and the betrothed themselves, while they hope to bring forth into the light successors of their race, are filled with manifold pleasure. But here, nothing of the sort is present. For what kind of thing is it, with such an offering, that [16-17] coincides...

the union is devoid of joy, and unholy, and unperfected, and incapable of any blessing, how could the name of marriage befit it? Or rather, how would the punishment due for lawless acts not follow them? But that it cannot even be called a marriage from the beginning, let this be briefly stated. Let our discourse examine more precisely the indignity of the matter. For when the Creator, in the beginning, joined male and female, He established that union in view of the abundance that would proceed from it, looking toward its increase (20-21). And indeed, nature itself (which, as a handmaid, observes as far as it can the precepts handed down by the Creator) has as its ^B goal that the marital association be formed for this purpose, in order that the succession of generations might proceed until such time as the Creator Himself should wish such service to be performed by it. If, therefore, that which the Creator of nature and nature itself intended is present in this case, let it not be hindered in that which is hindered. But if it is not (as indeed it is not, but quite the contrary, being destitute in regard to the fulfillment of the Lord’s will, and unnatural, and such as nature has not known), why should it not be hindered in every way? But if someone who takes pleasure in contention should say that, if eunuchs are excluded from marriage on account of sterility, marriage ought to be forbidden to many others, since not all who come together in marriage prove themselves fertile (for not all who come together for partnership have shown such a ^C nature from the union)—the answer is ready for the sake of contention: that in those cases, even if no fruit is produced, yet they did not come together for this purpose, nor so as not to contribute the benefit of the conjugal union to the life of the pair; but it is clear that they were gathered by a desire for procreation, and had supposed that their desire would proceed to the act, even if their hope failed to be realized in the event. But here, that such a thing could be said is very far from the truth, since those who have come together for that unnatural copulation, knowing clearly that they come together barren and useless for procreation, have, as it were, lain in wait for nature. And indeed, for this reason alone both are worthy of hatred: ^D the woman, because, desiring a union through marriage, when she could have joined herself to a fertile man, she preferred one who is infecund and sterile; and the eunuch, because he has caused, by his own impotence, that the Lord’s blessing should be in vain. If, moreover, anyone should devastate a field from which some other person might reap fruit and should leave it uncultivated, would we not hold him in hatred as evil and pernicious, and, if it were possible, hinder his intention? But as for anyone who lays waste and renders useless even that field from which a rational wheat-ear might grow—for this person, what...

we shall allow no injustice. And what might one say? “But,” they say, “Paul said: ^A *It is better to marry than to be aflame* (23-28), so that by the burning the union might be unhindered.” You who bring Paul into the middle, attend to Paul’s words. He said “to marry,” that is, to be joined to a woman through marital intercourse. If, then, your union with a woman is a marital joining, and worthy of receiving the blessing which is owed to those who are being led into marriage, then name it marriage and consider it to be a bridal union. But if you could not share in any blessing at all (for what or what kind of liturgical blessing could come upon those who are joined in a manner contrary to the ordinance of the Creator and contrary to the law of nature?), why do you dare to pull Paul into agreement with your unmarried and unnatural marriage? Furthermore, regarding those who remove the virility of these men—if this is what their intent aims at (even if they have come to this action erroneously and in opposition to God), so that they are no longer seen as men, but have withered and extinguished the desire for the female gender, and are safe ^B guards of the marriage bed (for this is what the title guarantees)—how could they not hammer out a just indignation against themselves by this means, since they not only possess a disposition hostile to nature, but to those very people who, even if maliciously, yet according to their own view, strove to make them appear useful, they have proved themselves adversaries, and they exist as a strange gender, being agreeable neither to the nature assigned to them from the beginning, nor to the malicious artifice transformed after that?

Therefore, we decree that if any of the eunuchs ^C is found proceeding toward marriage, he himself shall be liable to the punishment for fornication, and the priest who has dared to perform such an unholy union shall be stripped of his priestly dignity.

CONSTITUTION XCIX

Concerning the fact that he who brings the charge must first take the oath regarding calumny.

The same Emperor to the same Stylianus.

Whatever things concern taking precautions correctly, whatever things concern propriety ^D

[...of manners, these I put forward for the benefit of each individual and the common good of the state, both what I discover myself, if I can, and whatever ^A others have discovered, in order to contribute to the common utility. For this reason, among others, this law also, which had seemed to have perished, appeared to deserve a revival; it orders him who forces another into the necessity of taking an oath to swear first that he is not demanding the oath through malice, nor with the intention of creating trouble, but because he desires to obtain certainty concerning things about which his judgment is tossed by doubt. Since this decree had pleased the ancients, the more recent ones, neglecting its caution, when the oath is deferred, wish the one from whom it is demanded to undergo it, while they are not at all concerned about the one who demands it. ^B Therefore, our majesty decrees that, according to the decree of the ancient legislators, the form of oaths be preserved; and he who attempts to exact an oath from his adversary must first himself provide for his own character the fidelity he seeks from others: namely, that he proceeds to defer the oath not through malice, but for a necessary and unavoidable cause. For I believe that if both are thus compelled to swear, either the truth will emerge more clearly in the oaths, ^C or they will be restrained in some way, and they will not proceed to the deferring of the oath with such prompt and eager steps as they are now seen to do.

CONSTITUTION C

Concerning slaves who are joined in marriage to free persons.

governed, I mean that which concerns those who, because of uneven fortune—one free and the other enslaved—are driven by love to seek union in marriage, we include in legal terminology, and we decree ^A that if a person honored by freedom chooses the marriage of servile status, the union shall be established on these two conditions for those who have the marriage: for he must either take up an equal fortune with the servile person to whom he is joined by love, or promise to pay the price by which the portion of freedom held by her shall be liberated from slavery. And this indeed, as a kind of earnest money for an unequal marriage, he who enters into the society of the servile relationship must pay. But we also determine that masters should not themselves act too inhumanely in this matter, but that if the person who chose the household member for a union prefers to serve, the limit of the service shall be the expiration of the master's life, upon the occurrence of which they shall be released as free along with their own children, if the marriage has also granted them children; but if he does not agree to serve, nor has the payment of the price readily available to provide, he shall not be deprived of freedom by force, ^B but serving under the same master, with his wage valued at two solidi each year, he shall endure servitude for as many years as would, when the agreed price is summed up, satisfy the master in full for the slave, and leave him no just cause any longer to retain him, as we are about to show.

CONSTITUTION CI.

Concerning married slaves if one of them is gifted with freedom.

so that the union may remain unbroken. For the person who has been given freedom must not abuse it, but must ^A bear the yoke of servitude equally with the other party, until the final day of life meets the one who has obtained the dominion over the person who has not been released from servitude; or, if he does not wish to cast off the dignity of freedom, he must promise to pay the price for the person joined to him. But if he neglects this, and, seizing an opportunity from his own freedom, attempts to snatch the person left in servitude into the state of his own life, he shall not only achieve nothing by this arrogance, nor have the power to grant freedom to another, but shall even lose the freedom he himself obtained, and shall again submit his neck to the yoke of servitude; as one who, with an ungrateful spirit, has done injury to the kind and beneficent intent of his own master, and has dared to contemn, as if in rebellion, his master’s judgment, which he ought to have revered and honored.

CONSTITUTION CII.

Concerning maritime properties that are not sufficient by themselves for establishing fishing stations: and that one may be compelled to enter into a partnership even against his will.

A thoughtful and rational partnership of things brings many accumulated benefits to human life. For if one who is strong in ^B power joins with another who is similarly strong, his power becomes far more preeminent and useful; and if the wealthy make their riches common, they derive greater pleasure from their wealth; finally, if poverty presses, the communion of labor will not lack the consolation by which the bitterness of poverty may be mitigated. But although partnership and society are so convenient and useful in common life, a certain wondrous depravity entering the souls of men not only becomes a hindrance to the utility of others, but also persuades those who cherish it to prefer that their own concerns be harmed rather than to allow any profit to accrue to them from a partnership entered into with neighbors.

And we have certainly heard tell of such a thing concerning some ^C who possess maritime properties which, by themselves, do not yield much profit, but which, when combined in partnership with a neighboring and adjacent property, ^D would be able to yield a greater gain by being joined with the neighbor.

yielding rather a more abundant utility: they do not wish to enter into a partnership on account of their malice, nor to mix their own holdings with those of their neighbors, in such a way that both might be able to gain something; but rather they choose to suffer a loss themselves, provided only that they may be a nuisance to their neighbor. ^B But in truth, even though such persons may be unwilling to acknowledge their own loss, and while managing their own evils, neglect their utility through wickedness, like wild beasts that rush into their own wounds so that they might harm those nearby: nevertheless, our imperial majesty does not allow such wickedness to grow bold in the common life; nor, because they are unworthy of receiving useful care, shall we for that reason leave them without assistance. Providing in some measure for them, but especially for the neighboring party whom such misanthropy badly torments, we decree: that in the case of such seaside properties, in which each individual portion is not sufficient for the establishment of a weir, the parts are to be inter-communed, so that through such a communion the owners may be able to derive benefit from their own holdings, and if either party does not wish to enter into partnership, he is to be forced toward the partnership against his will. For we know it to be humane that even an unwilling person should partake of a benefit, and here the humanity is much greater, ^C not only because the one who does not understand the benefit is benefited against his will, but also because he who was unreasonably being deprived of it does not suffer that deprivation.

CONSTITUTION CIII

...or livestock, or indeed if anyone wishes, of terrestrial spots) each thing which enters into a common holding can, of itself, as far as its nature allows, be useful; but this is not the case with maritime properties. For a portion of maritime right, considered by itself, does not have a unique profit in the way those others do. For the catch ^A does not always remain in the same place, awaiting the fishermen as though they were hunters. On the contrary, even what is the larger portion is useless due to the lack of the smaller. For what use or utility is there in an imperfect thing? But since the addition of the smaller fills the imperfection and renders useful that which by itself would lead to nothing, it is consonant with reason [(65)] that it should provide the owner an equal share of the utility accruing from the larger portion, which without the addition of the smaller would yield no profit.

Therefore, our Imperial Majesty brings forth a law that will henceforth justly govern this; and we ordain that if an union of two maritime portions—of which one is larger and the other smaller—is made for the purpose of establishing fishing-stations, the owners of each portion shall divide the profit equally between themselves.

CONSTITUTIO CIV. Concerning fishing-stations between which there is no legitimate interval.

The same emperor to the same Stylianus.

Since it often happens that when neighboring fishing-stations do not stand apart by the legitimate interval, ^C altercations and lawsuits are ignited: regarding these controversies too, we ordain that when the defendant has been legitimately convicted, if the space of the place allows, he should transfer his fishing-stations where he might disregard a legislative prescription, so as not to be liable for a lawsuit; but if there is no place to which he might transfer them, the course of years shall be observed, during which the fixed-net of the fishing-stations [(67)] has been in the place of litigation; and if, with the plaintiff present and entering no protest, it has stood for ten years, it shall remain unmoved in the same place: but if the plaintiff is abroad, so that the net is not moved, a decade shall not suffice, but another must be gathered into the count, so that the total years are twenty. And this rule shall hold for private persons. Churches, ^D indeed, and monasteries, and any other venerable house, and finally whatever is referred to the fisc, shall have their rights preserved up to the fortieth year, disregarding the aforementioned time. And thus...

and monasteries, and any other pious house, and all things which are referred to public administration, shall be touched by the aforementioned time, up to forty years, while their rights are preserved to them. And thus, concerning the prescription of time ^A of limitation, such that over time they have an immovable status, we command that the person initiating the lawsuit shall not be deprived of the profit of the vestibule, even if the state has not once held [possession] ^B of the eviction on account of the unforeseen obstacle of time.

CONSTITUTION CV.

Concerning the case if any magistrate be caught in theft of public property.

The punishment and chastisement brought about by the laws is a good thing, because it corrects the disorderly and, even against their will, holds back those who are headlong toward wickedness from the rush toward evil things. And it is a good thing that the chastisement preserves the clemency that is becoming to the laws, and is not shown to be driven by ^C this, nor, under the pretext of correcting, does it exhibit a most cruel intention; since even a father, as long as he chastises a child who has erred with kindness, is to be praised both for his care and for his chastisement; but when he falls away from the mind that is becoming to a father and, not according to the principle of paternal kindness, but in a most harsh manner inflicts punishment upon the child, he neither instructs him as a father, nor will anyone approve of such harshness. If, then, the laws act as fathers with truth, as indeed they do, it is in every way consistent for them to define punishments according to the proportion of the sins, and not to impose some violent penalty that is far heavier than the fault. For where is the lawful discipline, where is the healing derived therefrom, if one who has not been shown to be the cause of death to anyone is punished with death? And while the children of physicians do not abruptly decree the amputation of limbs, shall the law—which professes a compassion incomparably superior to the compassion of medicine (if indeed the goal of the latter is benefit regarding bodies, while laws grant benefits to both the soul and the bodies)—show such harshness toward those whom it purposes to heal? Since matters are in this state, it is [a matter for] our majesty, as the law decries death upon a magistrate who is caught having stolen public property, and not against him alone, but...

635 LEONIS PHILOSOPHI 636

[...and] also if any have been his accomplices, ^A seeing that he is not a lover of humanity nor possesses a legal mind, it has pleased our majesty that he shall no longer be associated with legal constitutions, nor hold office at all, but instead be cast out as an outlaw and useless, paying from henceforth, as a penalty for such magistrates, for the theft of public property, the loss of their position and the twofold restitution of what they have stolen. And those who have shared in this, if they are men of means, shall be subjected to the same penalty; if they are poor, they shall be punished with scourging, ignominiously shorn, and sent into exile.

CONSTITUTION CVI

If anything appears to be in some way absurd and dissonant with justice, we consider that we are doing something worthwhile if, by enacting a law concerning it, we bring it into a proper order. ^B What then, pray, is this matter? It is this: as is often the case, women devoid of wealth and property are wedded to wealthy men. When the husband has departed from this life, the portion coming to them from his property (it comes as a portion bearing the name of this number, to wit, a fourth part, if there are four children or fewer; but if there are more, as much as each of them has) they do not receive into perpetual ownership, nor so that they can bequeath it by testament, but only for the duration of their life as a usufruct and to sustain their life; and after their death the ownership of this portion is transferred to the children, and no power is granted to them to use these things as they wish, unless it should happen that no children survive, an misfortune which blesses them with the ownership of the property: so that I do not know ^C whether a woman would prefer to see the fruit of her womb, or whether she would pray that none be born, so that she might thus become the true mistress of the portion in question.

Our imperial majesty, correcting this absurdity, ordains that the ownership of this portion shall not be taken away from the woman, but that she may dispose of it as she sees fit, and that nothing else shall be due to the children except what belongs to them under the Falcidian law; provided, however, ^D that she does not forget her former marriage, nor by bringing in a second husband bring insult upon the bed of the first: for if this should happen, the ownership granted by us shall be forfeited, and upon her death the children shall become the masters of the property.

CONSTITUTION CVII. That an actor, before the contestation of an action, must prove his good faith to the judge by submitting a written statement.

^A If whatever is honest and useful to human life remained unaged and ever-flourishing, and its utility never failed, that would indeed be the most excellent state of affairs. Wherefore, even if it happens (as it often is wont to happen) that through neglect such utility perishes—for those upon whom the care for the goods of common life rests—it is surely most appropriate that they should not neglect to restore that which diffuses much utility for the common good. ^B Therefore, our Majesty is now restoring to its former strength a certain law, once most useful to human affairs, but now seemingly grown old and in danger of becoming altogether useless; as if scraping away the infirmity of age, we renew it for its original purpose and for the utility of the state. The law concerns those who initiate proceedings, requiring that, before they come to an investigation of the matter, they make their good faith known to the judge by a written declaration, confirming that they are not harassing their adversary through any malice, that they have not been condemned in another trial, that they do not know at present that they have no standing before the tribunal, that they are not causing trouble with malicious intent, and finally, that they will not attempt to subvert the truth with falsehoods. Such are the prescriptions of the law; they are indeed well-founded, and a penalty was imposed upon whoever transgressed them. ^C Nor did that law apply only to the party himself, but it also judged the advocates of the cases by the same standards. Therefore, as I have said, our imperial Majesty restores this law, which had been abandoned and rendered altogether useless, to its former vigor and bestows it back upon the state. And we decree that those who wish hereafter to proceed to trial must, before entering, exhibit those things which are prescribed by law.

CONSTITUTION CVIII. Concerning one who does not present himself to the court at the first summons.

^D Nor is it right that this matter, even though it has been neglected and held in contempt until now, should be left uncorrected, but rather it is fitting that it be polished with appropriate assistance, inasmuch as it provides much utility for human affairs. Consequently, since we are likewise establishing this for renewal, just as that former part concerning the initiation of...

in a similar way renewing this, we decree that whoever is once called to justice by judicial citation ^A, and neither obeys himself, nor sends another person in his place to appear for the hearing, shall be judged worthy of a second notice; and if he is disobedient also to this, he shall not be judged unworthy of a third; and the judicial clemency, waiting for him even to such a length, if he is seen to show contempt even of the third notice, and though no reasonable excuse hinders his appearance, he does not stand before the judicial bench either by himself or by another person, then at that point, and then only, the sentence of condemnation shall be cast upon him while he is absent, and it shall no longer be permitted to him in any way either to dispute or to evade the condemnation. We decree that this verdict applies to either party, whether someone who is called to justice neglects to appear, or someone who has instituted an action and brought an adversary into court afterwards, with evil intent, by contriving trouble and delays of the suit ^B, desists from the action he has initiated. For this person, too, when he has been cited three times by the judge and has not appeared, shall be condemned in his absence, provided, however, as I have said, that there is no cause that might verisimilarly exculpate him who did not present himself in court, serving as a just excuse.

CONSTITUTION CIX

Since the wise man teaches that there is a time for every matter, and since the opinion of all those who are of sound mind embraces and approves this, in every action it is highly excellent to observe the time. But if this should be overlooked elsewhere, in the contracting of marriages at least it must not be overlooked. For it is necessary that in whatever matter is more essential in common life, one should proceed thereto with more prudence and caution. ^C For this very reason, following the ancients who rightly established a law concerning this, we decree that betrothals shall in no way be constituted before the age of seven years, nor shall a betrothal be confirmed by sacred ceremonies if the bride lacks the thirteenth year and the bridegroom does not complete the fourteenth; but this is forbidden. ^D

…regarding the common and public utility of the policy. If, however, the emperor (as often happens) makes provision for some new family, and permits the nuptials, and the conjunction to be celebrated by priestly blessing, within the prescribed years for those being betrothed, this shall in no way conflict with the law. For it is permitted to those to whom God has entrusted the administration of the affairs of the whole world, as if of a single household, to prescribe otherwise than the law which binds subjects, and to bring families together.

CONSTITUTION CX.

Among other things, which have been holily provided by the ancients regarding marriage, this matter also has been sufficiently provided for: namely, that a woman, when the marriage is dissolved, may not in any way she chooses claim for herself the receipt and possession of marital goods; but if a controversy should arise concerning these, she must first publicly bring forward ^B the inventory made after the husband’s death regarding her dowry, and the gift given before marriage, and all the rest of the husband’s property, and if anything in this is found to have been spent by the husband, she may seek its replacement from his property; and since this, just as it was rightfully ordained by the ancients, has now been abandoned out of negligence, because we see the utility of the ancients’ forethought to be worthy of preservation, renewing their decree we ordain that henceforth in every way an inventory of the dowry, and of the gift given before marriage, and of all other marital property whatsoever, must be zealously made ^C by women. So that, if a woman should at any time be brought to such a cause of contention, and should crave to proceed against the husband’s estate in place of that which has been reduced, the justice of the arguments might be recognized from that inventory or proof, in the manner of her reclaiming the husband’s goods, if it should appear from him that a consumption of the items contained in the inventory had taken place. But without evidence from this source, neither shall the claim find a place, nor shall she be heard with contentiousness to demand, nor shall she obtain any of the things which she seeks. Furthermore, we establish the time for drawing up the inventory: that within three ^D months

...and as for the time of the registration, we define it to be within three months, and that the penalties proceed, just as has been legislated by the ancients regarding guardians. ^A

CONSTITUTION CXI.

Concerning a wife who has fallen into madness, not through the treachery of her own husband, nor even with his knowledge, but if the madness has been brought about by the wickedness of others; that the marriage remain undissolved until the third year, and if that which comes from the madness causes distress, the union may be severed, and the husband may marry with permission, whomever he chooses.

The same Emperor to the same Stylianus.

Nothing is so necessary for the preservation of the human race as the help bestowed upon man from his rib; this the Artificer who fashioned it teaches, and nature herself attests to it by divine proof. Since this is so, it was fitting and appropriate that the providence of the law, and any care that might come to human affairs from elsewhere, should deliberate and decree on such a matter in a way that would be a help and a joy for the whole life of those who are united by the bond of marriage; such as would confirm the end for which marriage was originally proposed, and not, on the contrary, bind them together to bring misery and perpetual sorrow. ^B If, therefore, marriage ought to be such (as it certainly ought), that law does not seem to me worthy of acceptance which, if after the marriage is entered into a wife is seized by madness, compels the husband to keep her forever and always bear the burden of her madness. For where is it approved, where does it seem consistent with reason or worthy of marital life, that a husband should be tied for his whole life to an insane wife and be consumed by her foulness? For if there is no one so cruel that he would endure to lock any person up even for a moment with beasts, how can that law be considered endowed with legal benevolence which commands a husband to cohabit forever with a wife who has been turned into a beast by fury? But, they say, through the union they have become one ^C body, and it is necessary for one member to suffer the diseases of the other; and it is a divine command that those whom God has joined must not be separated. ^D

^A These things, indeed, which have been spoken by God, are good; but those who propose them here do not put them forward correctly, nor in accordance with the divine purpose. For if a betrothal preserved the same state which the matchmaker provided at the beginning, he who separates it would be wicked, and would not escape blame. But when, on account of madness, one cannot even hear a human voice from the woman, much less obtain from her any of those things which marriage provides for delight and cheerfulness, who would not wish to dissolve a union so bitter and abhorrent? ^B For this reason, we decree that if ever, after the communion of marriage, the wife should fall into madness, the husband shall bear the misfortune and suffer the sorrow for up to three years; and if within that time the evil is not resolved, and she who suffers from madness does not return to her own senses, from that time onward the union shall be broken, and the husband shall be freed from that unbearable calamity. ^C The enactment is thus qualified, so that an investigation and examination of the madness must take place, lest it be found to have been brought about by the plotting of the husband himself, or those closely connected to him, or certain others. If, indeed, any such thing should be detected, and if the man be convicted of wickedness, we decree that he shall undergo, as a penalty for his own malice, the transformation into the monastic life, and, whether he wishes it or not, be confined to a monastery and subjected to the healing of the soul according to the sacred canons. But if the harm came from her relatives or from elsewhere with the husband’s knowledge, we order the perpetrators of the wickedness to be subjected to the penalties of the laws, and the husband himself to be deprived of the administration of his own property, which must be set aside for the solace of the life of the one who was plotted against, and that he himself shall remain for the rest of his life forbidden from another marriage; and if he should dare to enter into one, he shall be forced, even against his will, into the monastic life. ^D However, he who is completely innocent of the wickedness committed, and has neither plotted against the life of his wife, nor has been accessory to others who have done evil, shall be exempt from both punishment and fine, and after the passage of the third year, the union having been dissolved, he may, without impediment, bind himself to another marriage. The calculation of the three years for the remaining husband shall be of such a nature: for the first year he shall live and dwell with the wretched spouse, leaving nothing untried that might contribute to her healing. In the two following years, if the disease resists the art of doctors, he may desert his spouse and live as a bachelor. But when in the third year also the disease has not ceased, he may proceed to a second marriage. And this is indeed regarding divorce and other marriages. But if the mad woman has parents or cousins, she shall be led to them as being her guardians.

bringing together members by zeal and strength; but as for the two, if the disease is stronger than any treatment, she shall be separated from this shared misery, and she shall endure, as has been said, unmarried and unbetrothed, and after the completion of the third year, if the madness has not ceased, she shall be enabled to enter into a second marriage. But these things concern separation and the joining of a man to another wife. ^B To the woman who has been reduced by madness to a state requiring divorce, if there are any kin or parents, access to them is permitted, as it is their right to assume every care for her life, it being understood that the affairs which by law fall under her authority are also to be moved there; but if there is no such providence of kin, we decree that the most God-beloved bishop of the region must hand her over to some monastery—where a pre-eminent head is known to preside over all things—and entrust to her its management; and the administration and handling of her property and the due care for the life and affairs of the one thus entrusted are to be provided by such a head, until the madness or her life reaches its end. And if children are present, they shall live and dwell with their father; and upon the death of the mother, they shall succeed to the inheritance of her property according to the law.

CONSTITUTION CXII

That if a husband throughout the time of marriage should fall into madness, the marriage cannot be dissolved within five years; but after that has elapsed, if the madness still holds him, it may be dissolved.

My intention is neither to weaken, nor to overturn, nor to censure the opinion of the old jurists, according to which it is established that madness prevents a marriage but does not invalidate or dissolve one that has already been contracted; and I remit those selfsame men to their own judgment, by which they were moved to decree this, to be weighed; yet I cannot be brought to approve or confirm that opinion, because it seems to me unworthy of approval. ^C For since marriage is prevented if madness anticipates it, but if, on the other hand, madness supervenes after a marriage is already contracted, it is said that nothing is harmed, how can we be enticed from this to approve it? For if the aim in marriage is that it should be contracted for the benefit of both spouses, how can the man who advises that it should not exist from the beginning—as it is disadvantageous—not also advise against its continuance as disadvantageous if the same calamity should emerge after it is contracted? Or is it fitting that effort should be made so that no one might fall into the risk of any evil at all, but that he who has already fallen into it ^D should be left without any help, and that one should not take pity on his calamities?

and not to pity his distress? Just as if someone, before a person is seized by illness, thinks it necessary to provide care, but when he has been seized, allows him to die by denying him treatment. But indeed, as I have said, while I have no intention of blaming the legislators, I am very far from agreeing with them, especially since many other methods have been established for the dissolution of a betrothal, none of which can rightly be compared to the hardship of insanity. ^A For if on account of the suitor's profligacy, or because of a difference in faith, or because of an inability or lack of fitness for the natural union, and if anything else numbered among these possesses the power for the dissolution of a marriage—such as if the betrothed should be revealed to be of servile status, or if the things promised in the marriage agreements do not proceed to fulfillment due to poverty—then if these and similar things are ^B considered by law to dissolve the marriage bond, how can they at all sustain a comparison with the calamity of insanity?

Therefore, we decree concerning insanity that befalls after the marriage, that the parties shall not be separated for five full years; for just as it seemed harsh and bitter that a marriage could not be dissolved by the incurable nature of the insanity during one's entire life, so, too, it is necessary to wait and persevere through time of such length. But if, after the period of so much time has passed, there is no release from the misfortune, and the insane person does not return to a sound mind, then the marriage bond should be severed, without any innovation ^C being introduced by either side. And we ordain these things not to disparage those who legislated before us, but for the fulfillment of the care we owe to our subjects.

However, if the insanity is noticed on the very day of the marriage, nothing shall stand in the way of it being dissolved immediately, even if the newly-ordained religious rite has taken place; but it shall end up as effectively void and be torn asunder, just as if the insanity had been noticed before the marriage. But [the idea] that they are to be separated after the consecration, will perhaps to some seem lacking in sound judgment, as though it were necessary—since through the unifying rite they have become one body—not to cut them asunder, but to leave them joined, ^D and especially since the husband is the more sovereign member and the head. For in the body, the more vital members are not cut off because they have been seized by some infirmity. Yet this argument, while it thinks it is standing for the union and defending it, seems to be ignorant of the purpose of the religious rite. For it [the rite]...

intending to bestow modesty on the betrothal, and binding both parties together with an indissoluble bond of love, it consecrates the propagation of the race and whatever else renders marriage pleasant. But how, I ask, could madness be consistent with this proposed purpose of the sacrifice? For where is the integrity of modesty, when the mind does not know itself, but is weighed down by the misfortune of miserable ignorance? And whence could the propagation of the race be expected, when madness makes the husband a sight wretched to behold for his miserable wife, let alone permitting her to have intercourse with him? By what bond of love, furthermore, could they be united, when the disease renders the whole human being bestial, and makes him appear anything rather than a human? And indeed, if by chance a fetus ^B from so unfortunate a union should come into the light, since nature is wont for the most part to assimilate its fruits to the circumstances, how would not this very fetus bring common detriment to the human race? To me, therefore, for these reasons also, it seemed just and reasonable—and not directed toward the rejection of the nuptial blessing, nor toward any other offense—to decree the dissolution of the marriage after a seizure of madness. And if anyone does not absolve this sanction from blame, let him, having considered it for himself, and having contemplated the benefit derived from such a marriage with a madman, learn what value his own judgment possesses.

CONSTITUTION CXIII

What the ancients discussed concerning the structures of houses and other walls is indeed well-conceived, and it was rightly decreed by them that neighboring buildings must be distant from one another by ten feet. But because in the laws no mention was made, and nothing was established, regarding these open-air promenades—which some perhaps might call spectator stages—that were devised for the purpose of sunning, and that alone, and have received their name from the sun (for they are called solaria), there is need for a decree that establishes rules for them and settles the contentions that periodically, as is likely, arise over them. ^D We decree, therefore, that also in these structures—namely, solaria—there must be preserved between neighbors as much of an interval as has been established for other buildings. For just as with those, a ten-foot interval was established for the sake of prohibiting a view: so here

the cause of observation determined the distance of ten feet, so here too, for the same reason, the equal measure shall reasonably be assigned, even though the cause of observation seems to demand a greater distance. For if, because those who live in neighboring parts should not observe one another, the separation of ten feet is performed, then here, so much the more should they be bound to stand apart, by as much as such structures are more suited for observation. For it is plain that a person sitting or doing something in a house would not be so easily observed, since there are many obstacles of walls, whereas in the stage-works, or, as many would prefer to call them, balconies, which are the subject of our discourse, nothing stands in the way of looking around. For this reason, we decree that it is not permitted for anyone to construct such a structure in any other way than by measuring a withdrawal of ten feet from the neighbor's side. Similarly, if anyone wishing to change the roof of his house should cover it with marble slabs, let him also not do this until he has moved the aforementioned distance of ten feet away from the neighbor. But if any other mode of assistance arises—I mean, a period of time longer than the legal limitation of time from the moment the work received its existence has elapsed, or if an agreement made in friendship is preserved, by which someone, having received permission, has proceeded to build—we command that the structure remain in its own state, even if it does not stand ten feet distant from the neighbor's structure. ^C

CONSTITUTION CXIV

A decree of the illustrious emperor, lord Leo, concerning the alienation of immovable property and the right of redemption.

It is permitted for the possessor of an immovable thing to sell it to whomever he wishes, without hindrance or prohibition. For my royal power permits everyone to purchase any immovable thing, which pertains to the public, provided that he makes payment of the public burdens, and provided that the neighbors do not hinder the alienation. For if a pauper and mendicant, possessing no property, wishes to alienate his own immovable thing, but the neighbors—lying in wait and delaying for a day or two—should, in a fraudulent manner, donate their own immovable thing to the pauper and mendicant, when the neighbor has received nothing, this is absolutely considered unjust by my royal power. Therefore, it is also ordained for all those who are destitute and mendicants that they may alienate immovable things which they cannot retain, after an appraisal has been made, and that the purchaser may well possess what he has bought; the neighbors are permitted to make an appeal up to the end of the first six months, and thus, with the valuation changed, to take that immovable thing from the purchaser; but this...

[the time having elapsed in such a way that the neighbors are excluded, when the possession of the immovable property is granted to the buyer.] ^A

CONSTITUTIO CXV. Concerning the Tabularii (Notaries).

The first of the edicts of the Lord Emperor Leo concerning political offices, regarding the tabularii:

Its first chapter states: He who is to be admitted as a tabularius ought to be submitted to the vote and examination of the primicerius and the tabularii who are with him, so that he may possess knowledge and understanding of the laws, and excel others in handwriting; and he should not be garrulous, obstinate, or of a dissolute life, but rather honorable in character, irreproachable in prudence, wise and intelligent, skillful in speaking, and apt for reasoning, so that he is not easily swayed one way or another by the writings of forgers and the arguments of the crafty. Thus, if anyone should perhaps be found contriving such things outside the law, the agreements, and what has been commanded to be written, these men shall testify that he will act with integrity. ^B

In the 2nd chapter it states: He who is to be admitted ought to have at hand the titles of the legal handbook and knowledge of the 60 books, and to have learned all the doctrines, so that he may not admit a fault in his writings, nor suffer ambiguity in his terms; he must also be given sufficient time to be thoroughly examined, in mind and body. Let him apply his hand to writing in the council, nor attempt it in an unplanned manner; if he is caught [doing so], he shall fall from his rank. ^C

In the 3rd chapter it states: He must be admitted in this way: after the testimony and investigation, let him appear before the illustrious prefect of the city with the council of tabularii and the primicerius, dressed in a toga. They shall swear by God and the safety of the emperors that they are not promoting him to this rank on account of any grace, favor, kinship, or friendship, but on account of his virtue, knowledge, and prudence, and that he is suitable in all things. And after the confirmation of the oaths, let him be admitted with a seal in the prefectural office by the one who holds direction; then let him be placed in the council and numbered among the tabularii. Then, let him proceed to the temple near which he has his dwelling, with all the tabularii wearing togas, and let him be consecrated through the prayer of the priest, having cast off the toga and being covered with a white garment, and surrounded by all the tabularii wearing their togas, while the primicerius holds a thurible and sends forth to him that sweet odor, while he carries the law in his hands, that his ways may be directed, as signified by the thurible, as incense ^D