Collection of Ecclesiastical Constitutions

A COLLECTION OF THE ECCLESIASTICAL CONSTITUTIONS OF THEODORE THE DEACON, SURNAMED BALSAMON

Which was published in Latin some time ago by Johannes Leunclavius under the name of Paratitla in the year 1593, but now it comes to light in Greek for the first time, from two ancient codices collated with one another, together with the version of the same Leunclavius. Carolus Annibal Fabrotus, Jurisconsult, collated this translation with the Greek codices, amended it, and added notes.

A COMPILATION OF MATTERS MENTIONED IN THE CODE, THE DIGESTS, AND THE NOVEL CONSTITUTIONS, REGARDING BISHOPS, CLERGY, AND MONKS, AND SACRED PROPERTY, AND ALSO REGARDING JEWS AND HERETICS

BOOK ONE

FROM THE FIRST BOOK OF THE CODE

TITLE I

1. Interpretation. He who does not glorify the holy Trinity...

^A as equal in one Godhead is not even called a Christian, but is a madman, and a heretic, and dishonored, and is punished.

II. Let heretics have no congregations, nor perform sacrifices or mysteries, even if they have obtained a rescript by subreption: let the faith of the Fathers who assembled at Nicaea hold authority; and if heretics dare to have congregations within cities, they shall be expelled from the cities. ^B

III. The writings of Porphyry and others against the Christians, and likewise those of Nestorius, and whatever else does not agree with the synods of Nicaea and Ephesus, from whose faith it is not permitted to depart, are to be burned. Those, moreover, who possess and read the books indicated are punished with the ultimate penalty: and Nestorian bishops and clerics are cast out of the churches; laymen are struck with anathema, while the orthodox may report them without danger. The tenor of the constitution is as follows:

Notes of Annibal Fabrot

...the books written by hand teach us that he is the author; indeed, Balsamon himself reveals that he is the parent of this book in the Nomocanon of Photius, tit. 9, cap. 2, at the end, as is evident from the Paratitla at tit. 5, at the end. For he who first translated it into Latin was ignorant of its author, perhaps because he had happened upon a mutilated manuscript. And Francais Pithou, a man of note, in his Glossary to the Julian Antecessor, under the word "Decani," cites these Paratitla without naming any author. Jacob Cujas, a man of great learning, also praises the author of the Paratitla elsewhere: so that they all seem to have come upon codices that bore no name; which name was finally discovered in a very ancient and excellent manuscript codex of Nicolas Peiresc, ^C Senator of Aix-en-Provence, which at the beginning is inscribed thus: "Of Theodore the Deacon, the nomophylax and chartophylax of the most holy Great Church of God, and first of the Blachernae, Balsamon, who after some years became Patriarch of the Great Theopolis of Antioch." ... [The note continues with an etymological and historical explanation of the term *Paratitla* and the sources of the ecclesiastical laws.] ^D

(3) *Mysteries*. Rightly, therefore, in lib. 11, of the same codex, ancient authorities, among whom are the codices of Brodaeus and Menagius, as well as the Greek and the Theodosian Code, have: "Let there be no place for the mysteries of heretics." For which "ministeries" was erroneously read before. The Basilics confirm the reading of the ancient codices, which they translate thus: "Let no place be opened to the mysteries of heretics." Finally, it is read thus in Hincmar, *De praedestinat.*, cap. 37; it will be permitted to correct a slight error in the same law with the aid of ancient books and the Basilics: for where it is read: "and let them be denounced by their open crimes," the manuscript books have: "and let them be marked more openly by their own crimes." The Basilics [read]: "and let them be marked more openly by their own crimes."

(4) *Are burned*. Similar books of Arius, Porphyry, and other heretics are consumed by fire under the Constantinian law, which exists in Socrates, *Hist. Eccles.*, lib. 1, cap. 6. Evagrius also mentions this constitution in lib. 1, cap. 12; Nicephorus Callistus, lib. xiv, cap. 36, and Julius Pollux, in the place cited above. By contrast, by the cruel edicts of princes, the writings of Christians were consumed by fire; which is reported of the books of B. Dionysius the Areopagite in the Greek Synaxarion. Diocletian and Maximian, in the codex of Mosaic and Roman law, tit. 15, concerning the Manichaeans and their writings (princes who were undoubtedly most hostile to them thought to remove the Christians and to destroy their writings with fire): "For we command that the authors themselves and their leaders, together with their abominable writings, be subjected to a more severe penalty, so that they may be consumed by flaming fires." Arnobius mentions this severity in *Advers. Gentes* 4: "For have our writings deserved to be given to the fires?" Optatus complains of this, and Augustine in a few places. The books of Protagoras the Athenian, who disputed profanely about divinity, were burned in the assembly, Minucius in *Octavius*.

(5) *Without danger*. They may not be punished, even if they could not prove the crime and the accusation.

^A Emperors Theodosius and Valentinian, Augusti, to Hormisdas, Praetorian Prefect.

We decree that whatever any person, driven by his own insanity, or anyone else, has written against the pious religion of the Christians, wherever it may be found, is to be committed to the fire; for we desire that all writings that move God to anger and harm souls should not even reach the ears of men.

Furthermore, we decree that those who emulate the impious faith of Nestorius, or follow his wicked doctrine, if they be bishops or clerics, are to be cast out from the holy churches; but if they be laymen, they are to be struck with anathema, while those orthodox persons who follow our pious legislation are empowered, without fear ^B or damage, to denounce and convict them. Since it has reached our pious ears that some have written and set forth teachings that are ambiguous and not accurately in accordance with the orthodox faith set forth by the holy synod of the holy Fathers who assembled at Nicaea and Ephesus, and by Cyril of pious memory, who was bishop of the great city of Alexandria: we command that whatever writings of such a kind there may be, whether from before or now, and especially those of Nestorius, are to be burned and committed to utter destruction, so that they may not come into the reading of anyone; and as for those who persist in having and reading such writings or books, they are to fear the ultimate penalty, and for the future, it is permitted to no one, beyond the faith set forth, as we have said, at Nicaea and at Ephesus, to say or teach anything.

IV. Whoever treats of the Christian faith in public before a gathering of the people, if he be a cleric, is deposed; if he be in the military, he is stripped of his belt; the rest, if they be free, are to be driven out of the imperial city, to be chastised according to the judgment of the magistrate; but slaves are to be severely beaten.

^C Annibali Fabroti's notes: (6) *Without fear*. Calumny. (7) *And damage*. Without all expense, Theoph. This law is that of Marcian, which exists in its entirety in Part 5, c. 3, of the Council of Chalcedon, from which Facundus of Hermiane, book XII, c. 2, preferred to transcribe it, rather than from the Code of Justinian, in which it is read in excerpt: "The Emperor Marcian also says: He considered it impious and sacrilegious to discuss anything after the judgment of the priests, and he did not permit anyone to reopen what had been rightly judged and settled, nor to dispute about these things publicly. He says by his edict, forbidding everyone to discuss the things that were judged at Chalcedon: he says truly, he is impious and sacrilegious who, after the judgment of so many priests, left anything for his own opinion to be discussed. For it is extreme madness to search for a candle in the middle of a clear day. For whoever seeks anything else after the truth has been found, seeks a lie. Let no one therefore, whether cleric, or soldier, or of any other condition, presume to discuss the Christian faith in public before gathering crowds and hearers, hereafter, seeking an occasion for ^D tumult and perfidy. For he does an injury to the judgment of the most religious synod, if anyone strives to reopen and publicly dispute things once judged and rightly settled." And below, after he decreed various penalties according to the condition of the transgressors: "All things, therefore," he says, "which were decreed by the holy synod of Chalcedon ought to be observed, and nothing afterwards to be doubted. Being warned by this our edict of tranquility, abstain from profane words, and cease from further arguing about divine things, which is an impiety, because we believe that we shall be punished for this sin not only by divine judgment, but also coerced by the authority of laws and judges." B. Chrysostom in the author of the Catena on John ch. 20, "For this is of faith, to accept things not seen. For there is faith," etc., Heb. 11. (8) *That the cleric*. In Trullo; Basil does not exist in the Basilics, nor in the Code of Justinian. (9) *If he is in the military*. Ancient books, and Facundus, and the rest, Broti and Menagii. (10) *Stripped of his belt*. Removed from office.

^A V. Exposition of the orthodox faith, and anathema against Eutyches and Nestorius, and that those who hold their views are heretics and are to be disciplined. VI. A similar exposition of the orthodox faith, and anathema against Eutyches and Apollinaris. VII. Similar to the preceding, receiving the four holy councils, and confirming the anathemas and excommunications promulgated by them. It states, among other things, that the Pope of Rome is the first among all priests. Epistle of the Pope to Justinian, containing what was written by him regarding the orthodox faith, which is set forth under this epistle.

Concerning the Orthodox Faith

^A Mary, the Theotokos, that is, our very salvation; nor does he confess the same to be consubstantial with the Father in all things according to his divinity, and consubstantial with us according to his humanity. In the same way, we also condemn Apollinaris, that destroyer of souls, who declares that our Lord Jesus Christ, the Son of God and our God, is devoid of a mind; and who introduces a confusion, or rather a commingling, into the inhumanation of the only-begotten Son of God. And [we condemn] all those who have thought or currently think the same things. For if any persons, after this proclamation of ours and the certification of our most God-beloved bishops in every place, are found hereafter to be of a contrary opinion, let them not expect to be deemed worthy of pardon. For we command that such people, as confessed heretics, be subjected to the competent punishment.

Et similiter se habet quod dictum est hoc modo. ^B Idem Imp. Constantinopolitanis.

While we worship the Savior and Lord of all, Jesus Christ, our true God, in every respect, we diligently strive, as much as the human mind is able to attain, to imitate his condescension. And having found some who are held fast by the morbid frenzy of the impious Nestorius and Eutyches, enemies of God and of the holy, catholic, and apostolic Church, refusing to call the holy, glorious, ever-virgin Mary, Theotokos, properly and in truth, we have made haste to ensure they are instructed in the correct faith of the Christians. ^C But some, being incurable, go about hiding their error, as we have learned, disturbing and offending the minds of the simpler ones, and speaking things contrary to the holy, catholic, and apostolic Church. Wherefore, we have deemed it necessary to dissipate the falsehoods of the heretics and to explain to all how the holy, catholic, and apostolic Church of God thinks, and how its most holy priests preach. Following in their footsteps, we also manifest what we believe concerning the hope that is in us: not introducing a new faith—God forbid!—but refuting the madness of those who think the same things as these impious heretics; a thing which we indeed did at the beginning of our ^D reign, and thereby sufficiently declared our mind to all. For we believe in one God, the Father Almighty, and in one Lord Jesus Christ, the Son of God, and in the Holy Spirit, worshipping one essence in three persons, one divinity, one power, a consubstantial Trinity. And in these last days we confess our Lord Jesus Christ, the only-begotten Son of God, true God from true God, begotten of the Father before the ages and without time, coeternal with the Father, he from whom are all things and through whom are all things, who descended from the heavens, was incarnate of the Holy Spirit and of the holy, glorious, ever-virgin Mary, and was made man, and suffered the cross for us under Pontius Pilate, was buried, and rose on the third day: knowing that the miracles and the sufferings which he endured voluntarily in the flesh belong to one and the same person. For we do not know one God the Word and another Christ, but one

^A and the same, consubstantial with the Father according to his divinity, and himself consubstantial with us according to his humanity. For just as he is perfect in divinity, so the same is perfect in humanity. For we accept and confess the union according to hypostasis. For the Trinity remained Trinity, even after the God Word was incarnate. For the holy Trinity does not admit the addition of a fourth person. Since these things are so, we anathematize every heresy; and especially Nestorius, the worshiper of man, and those who have held and do hold his opinions, who divide our one Lord Jesus Christ, the Son of God and our God, and do not confess, ^B properly and according to the truth, the holy, glorious, and ever-virgin Mary as Theotokos, that is, Mother of God, but speak of two sons—one, the God Word born of the Father, and another, him born of the holy, ever-virgin, and Theotokos Mary; and say that he became God by grace, and by relation, and by affinity with the God Word. And those who deny and do not confess our Master Jesus Christ, the Son of God and our God, who was incarnate and became man and was crucified, to be one in that holy and consubstantial Trinity. For this one alone is he who is worshipped and glorified together with the Father and the holy Spirit. We also anathematize Eutyches, ^C the mentally deranged, and those who have held and do hold his opinions, who introduce a phantasm and deny the true birth of our Lord and Savior Jesus Christ from the holy Virgin and Theotokos Mary—that is, our own salvation—and do not confess him to be truly consubstantial with the Father according to his divinity, and consubstantial with us according to his humanity. In the same way also [we anathematize] Apollinarius, the destroyer of the soul, and those who have held or do hold his opinions; who say that our Lord Jesus Christ, the Son of God and our God, is without a mind, ^D and who introduce a confusion or commixture into the inhumanation of the only-begotten Son of God; and all who have held or do hold their opinions.

The same to the Ephesians; the same to the Caesareans; the same to the Cyzicenes; the same to the Amidenes, the Trapezuntines, the Hierosolymitans, the Apameans, the Justinopolitans, the Theopolitans, the Sebastenians, the Tarsians, the Ancyranes.

The same Emperor to Epiphanius, most holy and most blessed archbishop of this royal city and ecumenical patriarch.

Wishing your holiness to know all things that relate to the ecclesiastical state, we have deemed it necessary to use these sacred characters to [communicate] them to you.

^A make manifest those things which have been moved, which we are persuaded your holiness also knows. For, having found certain men who are strangers to the holy, catholic, and apostolic Church, and who follow the error of those impious ones, Nestorius and Eutyches, and who make use of their blasphemies, we have added a divine edict, which your holiness also knows, by which we have refuted the madness of the Nestorian heretics, changing absolutely nothing, nor altering, nor passing over anything of the ecclesiastical state that has prevailed until now by the grace of God, as your blessedness also knows. But in all things we keep the state of the union of the most holy Churches towards the most holy pope of elder Rome and patriarch, to whom we have written similar things. For we do not suffer that any of those things which pertain to the ecclesiastical state should not also be referred to his blessedness, since he is the head of all the most holy priests of God; and since, as often as heretics have sprung up in these parts, they have been abolished by the sentence and right judgment of that venerable see. For from these present sacred characters, your holiness shall learn those things which we have proposed, by which those who attempt to understand or interpret wrongly those things which have been rightly set forth by us in the edict, may be refuted out of these our present sacred characters.

A few unbelievers, and ones ^B estranged from the holy, catholic, and apostolic Church of God, have dared to contradict in Jewish fashion those things which are rightly held, approved, and preached by all the priests, denying our Lord Jesus Christ, the only-begotten Son of God and our God, who was incarnate from the Holy Spirit and the holy and glorious ever-virgin and Theotokos Mary, and became man and was crucified—that He is one of the holy and consubstantial Trinity, worshipped and glorified together with the Father and the Holy Spirit, consubstantial with the Father according to divinity, and consubstantial with us according to humanity, suffering in the flesh, the same one being impassible in divinity. But they refuse to confess our Lord Jesus Christ, the only-begotten Son of God and our God, to be one of the holy and ^C consubstantial Trinity; and they are plainly shown to be and are convicted of following the wicked teaching of the impious Nestorius, calling Him Son of God by grace, and claiming that the God Word is one and Christ another. These, indeed, together with their dogmas and those who have followed or do follow their opinions, we anathematize as being strangers to the holy, catholic, and apostolic Church of God. For all the priests of the holy ^D catholic Church, and the most reverend archimandrites of the holy monasteries, [the] holy...

Fathers, and having changed or changing nothing at all of the ecclesiastical order ^A that has existed until now, as has been said, with one consent confess and glorify, preaching our Lord Jesus Christ, the only-begotten Son of God and our God, who was begotten of the Father before the ages and without time, and in the last days descended from the heavens, and was incarnate of the Holy Spirit and of the holy, glorious, ever-virgin Theotokos Mary, and was made man, and was crucified, as being one of the holy and consubstantial Trinity; for we know him to be consubstantial with the Father according to his divinity, and the same to be consubstantial with us according to his humanity, subject to sufferings in the flesh, but impassible in his divinity. For as he is perfect in divinity, so the same is perfect in humanity. For we accept and confess the union according to hypostasis. Since, therefore, the only-begotten Son and Word of God, who was begotten of the Father before the ages and without time, ^B the same also in the last days descended from the heavens and was incarnate by the Holy Spirit and of the holy, glorious Theotokos Mary, and was made man—that is to say, our Lord Jesus Christ—is properly and truly God, for this reason we also call the holy and glorious ever-virgin Mary properly and truly the Mother of God, not as though God the Word took the beginning of his existence from her, but because in the last days he descended from the heavens and was incarnate and born from her, and was made man. We confess, as has been said, that he is consubstantial with the Father according to his divinity, and the same is consubstantial with us according to his humanity, acknowledging that both the miracles and the sufferings which he voluntarily endured in the flesh are his. ^C These, then, are the things which we have set forth through our divine edict, by which we have confounded the heretics; to which divine edict all the most holy bishops and most reverend archimandrites found here have also subscribed, together with your Holiness, following in all things the four holy councils and the decrees set forth by each of them—that is to say, that of the 318 in Nicaea, that of the 150 in this imperial city, that of the first in Ephesus, and that of Chalcedon; it being obvious to all that we hold and keep the definition of faith, that is to say, the holy lesson or symbol, which was handed down to all of us who are the faithful of the holy catholic and apostolic Church, which was set forth by the 318 holy Fathers, ^D which also the holy Fathers who were gathered in this imperial city clarified and rendered clear. Not because it was lacking anything, but because the enemies of the truth, some, on the one hand, attempted to reject the divinity of the Holy Spirit, while others denied the true incarnation of God the Word from the holy, ever-virgin Theotokos Mary. For this reason the holy Fathers confirmed this most sacred document with Scriptural testimonies. The same, too, did all the other holy synods, namely the first at Ephesus and that at Chalcedon, having followed the same faith, they received and preserved it; and that holy, glorious...

^A ever-virgin Mary as Theotokos they proclaimed, and those who did not confess her to be Theotokos they anathematized. Likewise, they also anathematized those who handed down another creed or holy doctrine besides that which was set forth by the 318 holy Fathers, and was explained and clarified by the 150 holy Fathers who gathered in this imperial city. And the first synod at Ephesus indeed abrogated and anathematized that impious Nestorius and his dogmas, and anathematized those who had held or who hold his opinions, and those who had consented or who consent with him. The holy synod at Chalcedon ^B also abrogated and cast out from the holy Churches of God, and anathematized, the impious Eutyches, his dogmas, and those who had held or who hold his opinions, and those who had consented or who consent, and also all heretics, their dogmas, and those who had held or who hold their opinions it anathematized. Likewise, it also anathematized Nestorius and his dogmas, and those who had held or who hold his opinions, and those who had consented or who consent with him. The same holy synod at Chalcedon also received and confirmed through its own report the letter written by the great Proclus to the Armenians concerning the fact that one ought to say that our Master Jesus Christ, the Son of God and our God, is one of the holy Trinity. ^C For if we should depart from the mentioned holy synods, or from the things defined by them, we give license to the heretics who were cast out by them and to their dogmas to show their own plague again into the holy Churches of God; which may it never be possible to happen; God forbid. Since the mentioned four holy synods by their own decrees cast out both the heretics themselves and their dogmas; and if anyone doubts concerning one of the said holy councils, he clearly shows himself to be holding those dogmas which were rejected and anathematized by them. Let no one, therefore, disturb you, clinging to a vain hope, that we have acted or will act against the mentioned four holy synods, or that we will permit it to be done by some, ^D or that we will endure the removing of the holy memory of those same four holy synods from the mentioned diptychs of the Church. For all those deposed and anathematized by them, together with the dogmas of the deposed, and those who have held or who hold their opinions, we consign to anathema. Wherefore, let him pray for us and for our republic,

^A instructing and assuring your Beatitude regarding our intention and our zeal concerning the immaculate faith.

VIII. Edict, in the name of Justinian. To the most glorious... Justinian, Perpetual Augustus.

Paratitla of Title I

Book 1, title 3, constitution 15, whose beginning is: *Conventicula*. In private houses, let no one hold profane conventicles.

Book 1, title 3, constitution 23, whose beginning is: *Quoniam*. Let Eutyches and his impious utterances be rejected; but let Flavian, who is honored by the testimony of the Synod of Chalcedon, be praised as one who believes correctly. It exists in the acts of the Synod of Chalcedon.

Book 1, title 3, constitution 29, whose beginning is: *Oi en tois monasteriois*. Not even an apocrisiary of a monastery, whenever he comes into a city, shall dispute ^B concerning the faith.

Book 1, title 5, constitution 8, whose beginning is: *Quicunque*. Let all embrace the Nicene faith. Let no one follow the opinions of Eutyches and Apollinaris, nor let such persons hold private conventicles, nor dispute about such heresy either publicly or in secret.

Book 1, title 5, constitution 12, whose beginning is: *Hæreticos*. When one of the parents wishes to make their children ^C orthodox, let their opinion prevail.

Book 3, title 12, constitution 2, whose beginning is: *Omnes*. Let all tribunals and the urban populace keep holiday on the Lord's day; however, it is permitted to farmers alone to remain intent upon their own work.

Book 3, title 12, constitution 5, whose beginning is: *Quadraginta*. Let no criminal investigation ^D be conducted during the Quadragesima fast.

^A During the fifteen days of Easter, and on the day of the birth of Christ, and at the Epiphany, and on every Lord's day, and at the commemoration of the Apostles, let both the tribunals and the spectacles, as well as the exactions of the annonae and the collection of private debts, remain at rest.

TITLE II

Concerning the most holy churches, and their property and privileges

I. It is permitted to anyone, in his last will, to leave [property] to the most holy churches. For the wills of those who are departing this life ought to be held valid.

II. It is not permitted to bury in the churches of the Apostles or of the martyrs. ^B

III. Holy martyrs are not to be sold or bought.

IV. Let the Church of Constantinople have no more than nine hundred and fifty deacons.

V. The landed estates of city churches are not subject to base services, or to extraordinary [duties], or to *epiklasmoi*, or to transportations. Only the... ^{C D} [alt-version omitted]

canons do they contribute, and they recognize the necessary coemptions. Whoever contravenes this incurs the charge of sacrilege and is sent into perpetual exile.

^A VI. Doubts [(56)], which arise throughout all Illyricum, are not to be decided against the judgment of the Archbishop of Constantinople, which holds the privileges of elder Rome.

VII. For the construction of roads and bridges, even divine houses and churches are inscribed. For this is not a base service.

VIII. The Church of Thessalonica is relieved from its own capitation, but not other [churches] in its name.

^B IX. The deans [(39)], or collegiates, not fulfilling this office, are not exempt from other services, such as [those] of money-changers and bankers; but they give substitutes, approved by the primate.

X. A ship which holds more than two thousand *modii* is not excused before the *embola* and the transport.

Notes of Annibal Fabrot

(33) But the canon... not any [burden] whatsoever, but as an unforeseen necessity might demand, as it is in the law, nor do they therefore bring in a canon without necessity. Balsamon and the Hermopolite, who say that they only give the public canons, depart from the opinion of the constitution. Canon is tribute. Antiochus the monk in the *Pandect* homil. 105: "As the farmer..." S. Athanasius, *Apol.* 2: "As I [have told] the canon to the Egyptians..." Sozomen, lib. 11, c. 21, on the same matter: "As a tax imposed on the Egyptians." Hence the *canonicarii*, concerning whom see our *Glossary* on Julian the Antecessor.

(34) Necessary coemptions. Coemption, or purchase without necessity and without the order of the prince, is not indicated for possessors, law 11, C. *ut nemini lc.* in the species of coemption ^C it is excused, from which burden not even divine houses are excused, law 1, *eod.*, Novella of Tiberius on divine houses, nor estates of churches. This appears to be the opinion of this place.

(35) ...perpetual exile is threatened, law 1, *v*.; so it is read also in the best Brodaeus codex.

(36) If any doubt touching upon divine rules should arise in Illyricum, Theodosius reserves [the decision] to the sacerdotal assembly and the synod of the Illyrian diocese. So, however, that it be referred in that matter to the bishop of New Rome, which enjoys the privileges of elder Rome. Regarding the interpretation of the law, I am in agreement with that very learned man, Peter de Marca, the illustrious Archbishop of Toulouse, *On the Concord of Empire and Priesthood*, lib. iv, c. 2, and *On the Primacy of Lyons* § 40, p. 106 et seq. Let us look at the amendment of the law. In the Theodosian Code it is held: "We command." Then, "if any ambiguity should arise." In Justinian it is read thus: "That if any ambiguity should arise," etc., as in the Menagius code. What the true reading is, and is confirmed by the words of Balsamon ^D in the *Paratitla* to tit. 3, "so that when," etc. Therefore, after the division of Illyricum into Western and Eastern by Theodosius the Elder, when some doubt had arisen about canonical questions, and it was asked to whom their discussion pertained, Theodosius the Younger decided in law 1 that nothing should be innovated about canonical questions to be decided, but that the antiquity and the original ecclesiastical canons should be observed even throughout all Eastern Illyricum, so that indeed doubtful questions might be examined in an Illyrian synod: nonetheless, that the bishop of New Rome should be made certain regarding that matter, so that the bishop of New Rome might possess the same right as [the bishop] of elder Rome, to whom doubtful cases were accustomed to be referred. Avitus of Vienne in his epistle: "And because you know it is [the custom] of synodal laws, that in matters which pertain to the state of the Church, if any doubt has arisen, we should recur to the greatest priest of the Roman Church as to our head and to the following members." See what I noted at *Parat. Cod.* tit. 2, lib. 1, near the end. The authors of the *Basilica* understood it such that doubtful canonical questions should be referred to the Archbishop of Constantinople to be defined by him and his synod: in the *Basilica* the word "Constantinopolitan" is missing. V. Balsamon, on the *Nomocanon* of Photius, tit. 1, c. 5, and tit. 8, c. 1, and tit. 9, c. 4, and *Parat.* tit. 4, below in the beginning. Hither seems to pertain what exists in the *Synopsis of Leo and Constantine* tit. 3, § 9.

(37) Which the privileges of Rome... Theophanes of Theodosius: "he refused." *Hist. Misc.* Add the synod of Chalcedon, can. 28, the synod of Constantinople in Trullo c. 36, Theod. Balsamon, *responses in the Juris Graeco-Romani*, p. 443.

(38) For the instruction of roads and bridges. See law 1, page 6. C. Th. *de itin. mun.* Nov. 131, c. 5, Capitulary of Charlemagne, lib. v, c. 107. To the Church of Thessalonica [capitation] is remitted, law 1, of each, 12, C. *de annon. et tribut.* Not even the census of fields. S. Ambrose *against Auxentius*: "Let the fields of the church pay tribute." Thus Cujacius interprets the law. *Parat. Cod. eod.* Balsamon, so that the Thessalonian Church itself might be relieved from the burden of capitation, but not other [churches] in its name. Capitation is the census of a head, Hero, (so reads the MS, read *capitationes*), for they call the head *caput*. See Matthew ch. 17, 24. Tertullian, *Apol.* c. 13. "The heads of men valued for stipend." And *To the Nations* c. 1. See Seneca *De Benef.* 8, 7. Theophanes: *kephalitiōn*...

(39) Deans. Deans are funeral attendants, litter-bearers, grave-diggers, undertakers, of whom see our *Glossary* on Julian the Antecessor.

^A of public goods, neither by privilege, or person, or dignity, or church; even if it has an imperial order, or a pragmatic sanction. For whatever in any matter is brought forward contrary to the law, or public utility, is not maintained. But if anything should be attempted in fraud of this law, the vessel itself is confiscated.

XI. All are obligated, even the estates of the churches, to provide *angariae* and wagons for the imperial expeditions as they pass through.

XII. The privileges of the churches shall be firm. But pragmatic sanctions which are contrary to the canons shall be rendered void, and the various species assigned to the churches by the public treasury shall be provided for the feeding of the poor. ^B

XIII. In a valid testament, or codicil, or unwritten will, it is permitted to widows, and deaconesses, and holy virgins, and recluses, and other holy women, to leave something to the church, or to a cleric, or to a monk, or to the poor by appointment, and substitution, and legacies, and trusts, as well specifically as by universality. ^C

XIV. The immovables of the Church of Constantinople must be diligently cultivated and divided; and neither they, nor the tenants, nor the rustic slaves, nor their *peculia*, nor the civil loaves may in any way be alienated to any person whatsoever, not even if all the clerics consent with the archbishop and the *oikonomos*. For he who has obtained such things, as well as the price, and if he has given anything else to any person, loses it; and these things are adjudged to the Church. He returns the thing itself, together with the fruits harvested in the meantime, and the rents of the buildings, and the accessions, as if it had not been sold. For things done contrary to the laws ^D are held as if they had not been done. And the *oikonomos* who consented to the alienation, or permitted it to happen, falls from his office of *oikonomia*, and together with his heirs he [makes] the church [whole/undamaged].

^A And the magistrate or any other person who verifies such documents loses his rank and his property. But one may receive the usufruct of church property, in writing, for a specified time, or until the end of one's life, according to agreed-upon covenants, and on condition that one leaves to the Church, along with the tenants, the property having such an income, for [the Church's] ownership.

XV. If any person grants movable or immovable property, or any right, to the person of a martyr, or prophet, or angel, as if he were about to build an oratory for him, and makes this donation known in the manner in which it is necessary for it to be made known, this work is binding; even if it has not yet been begun, he and his heirs are compelled to complete it, and once completed, to give over those things which are contained in the donation. The same holds for buildings destined for the use of pilgrims, the sick, and the poor, the bishops and *oikonomoi* having the authority to bring [matters] before them. When these things are fulfilled, the administration takes place according to the judgment of those who have made the generous offering, in accordance with the established terms.

XVI. This constitution abrogates those things which happened ^B during the tyranny against Zeno, contrary to the former imperial decrees concerning priests or the ecclesiastical order; it renews the former [laws], and says that the [Bishop] of Constantinople has the right of precedence over the others.

XVII. The privileges of the Great Church of Constantinople, and of the pious houses ^C which are administered and sustained under it, shall be preserved. But the other churches, and the monasteries, and the poorhouses, and the hospices, and the orphanages of the same city and its surrounding regions, and those subject to the ordination of its archbishop, or of the metropolitans who from ^D [the *oikonomos*]...

^A these are ordained, do not alienate immovable property or civil provisions, unless the sale, or the mortgage, or the exchange, or the perpetual emphyteusis be advantageous; that is, if the price of the thing sold, or the amount borrowed under mortgage, is destined to proceed to the redemption of a debt, arising from succession or from some other necessary need pressing upon the pious house, or for the purpose of acquiring another thing more necessary, or for the urgent renovation of the pious house; and likewise if an exchange is made for a thing more necessary, which has a return not less than what is given, and if emphyteuses are established without diminution of the return, or if the thing itself is entirely sterile. For things that are harmful by reason of their sterility may be donated and granted to others. ^B But what is done is not valid unless one of the reasons mentioned is made manifest in the records: at Byzantium before the master of the census, and in the provinces before the *ekdikoi* [defenders], with the Holy Scriptures set forth. In the matters of the churches, the *oikonomoi* [stewards] of the absent clerics must be present; in the matters of monasteries, the abbots and other monks must follow; in the matters of poorhouses, the administrator and his ministers, and the poor themselves; in the matters of hostels, the administrator and all those found serving in the administration; and likewise in the matters of orphanages [that is, the orphanages], so that what is pleasing to the majority holds, with the consent also of the bishop of the places in which this business is accustomed to be done; nor may the master of the census or the *ekdikos* refuse, but must enter the ^C venerable house in which such business is being transacted, without harm, and protect it. For they are subject for transgression to a penalty of twenty pounds of gold. And after this, contracts are made recording the same, and the action of the records, and the naming of those who were present, and before whom it was transacted. If, however, any of the aforementioned is overlooked, the creditor and the buyer loses the object, and the debt, and the prices; he who took [something] in exchange forfeits both what he gave and what he received; and he who received [a thing] for emphyteusis beyond his own life, or by donation, or by prohibited cession, restores what he received, and an additional quantity equal to the value of what ^D was given. The aforementioned things have place also for ecclesiastical and religious houses that are to be in the future. But of movable things, outside of the sacred vessels, and those sufficient for the aforementioned cases, [index: entries preserved]

^A it is enough that the alienation and the mortgage of immovable property and of necessities and of bread be done.

XVIII. This constitution assigns to the Great Church of Constantinople a revenue of seventy pounds of gold, to this end, that funerals be conducted in Constantinople without expense, as far as the New Walls and at Blachernae. For Sycae is a part of the city. It establishes, against violators, a penalty of fifty pounds of gold for each.

XIX. Donations not verified by acts, which are made up to five hundred coins to the city, or to a church, or to a xenodochion, ^B or to a nosocomeion, or to an orphanotropheion, or to a ptocheion, or to the poor themselves, are valid. But the rest, even if they are made for other pious works, require registration; and those mentioned above, which exceed five hundred coins, are valid without registration, excluding imperial donations.

XX. Neither by sacred form nor by order of the commanders is it permitted to transfer military rations ^C to pious houses or to clergy.

XXI. He who is not for the sake of the redemption of captives—

Annibalis Fabroti Notes

(57) Note that Codinus in his *Parabolai*: The priest on what is called Sycae built a temple, which received its name from the sycamine trees ^D that it found there.

(58) *Not verified*. These donations are valid even without the drafting of acts. So the edition of Haloander, Duarenus, and the old exemplar of Brodeus in C. 1, 19, from the code of Photius, Nomoc. tit. 9, c. 1. So it is read in the fifth codex of the most distinguished Nicolaus Peirescius, senator of Aix. *De donat.* refers to the same as do many other things, the first edition, the Greco-Latin Glossaries, I allege, *intimo*, *intimatio*. From the old glossaries: *insinuatio*, [with] Latin-Greek Glossaries: *intimare*, *phanerosai*.

(59) *Xenodochion*. Xenodochia are houses of God, in c. 55, *extr. de appell.*: Hostel-Dieu, in which needy strangers are received for hospitality, in the Epistles of the Emperor Julian. St. Augustine, *In Joannem tract.*: Xenodochia and monasteries were later called by new names, but the things themselves existed before their names, and are confirmed by the truth of religion. Hence it is, Joannes Cantacuzenus, *Hist.* lib. iv, c. 30. Of these, St. Basil in epistle 371 to Elias: "Why do we sin by building inns for strangers who might happen to arrive here? Julian orders them to be built, so that needy persons might be received there without discrimination," in epistle 49 to Arsacius. Concerning which Theophanes in his *Chronographia*: "That impious one and transgressor, imitating Christian beneficence, ordered necessary things to be supplied to strangers and to the poor, deceiving the simpler ones."

(60) *Nosocomeion*. St. Jerome in *Epitaphio Fabiolae*: "She prepared in money what had been gathered for the uses of the poor: and she was the first of all to institute a nosocomeion, in which she might collect those sick from the streets, and comfort the limbs of the miserable, wasted by languor and starvation." Hence Dorotheus, *doctrina* 4. Nicetas Choniates in *Isaacio Angelo*: "He turned the royal rooms into a nosocomeion."

(61) *Or orphanotropheion*. Balsamon on Canon 7, Synod of Chalcedon. Orphanotrophia are places in which juniors destituted of parents and substance are educated. Hence orphanotrophoi, whose duty it was to feed and educate orphans of this sort. Theophanes: "Magnus Constantine granted a wheat-ration to the churches throughout the cities, to be a perpetual food for widows, and orphans, and strangers, and the poor, and members of the clergy," *in c. 1, everything is surpassed, thus also the donations made by him surpass all other donations.* Same, Theodorus.

(62) *Or ptochion*. In this place it is clear that in c. 19, the words "or into a gerontocomium, or into a brephotrophium" are correctly absent from the old books, as they do not appear in the Brodeus manuscript.

(63) *The rest*. If donations consist of five hundred, registration is not required. If they exceed that quantity, in that which is surplus, if it is not registered, it is useless; in the remainder it is useful, as Theodorus Hermopolita interprets here, from lib. c. *De donat.* Same, Theodorus.

(64) *Imperial donations*. From the *Basilica* books, Cujacius edited *Obs.* lib. xii, c. 28, in which he correctly deemed it should be amended, as is clear from this *Epitome* of Balsamon.

(65) *Neither by sacred form*.

(66) *He who is not for the sake of the redemption of captives*. V. Bas. t. 1, p. 168. Gregory M. ep. 10: "The sacred canons and legal statutes permit the ministries of the Church to be surrendered for the redemption of captives." Ravennius in *Life of St. Hilarius Arelatensis*: "He acted so that the sacred ministries (so I think it should be read for *mysteries*) might afford comfort to the captives rather than ornaments to the churches." St. Ambrose, *Offic.* ii, c. 28: "We sometimes fall into envy, who melted down the mystical vessels that we might redeem captives." And

sacred vessels or vestments 67, or accepts them as a deposit or pledge 68, loses both the price and the debt. And these are vindicated by the bishops and the treasurers 69, even if they have been melted down; and their prices 70 are demanded, if they do not appear, by *condictio* or *actio in factum*.

XXII. Items that come to religious houses from curial generosity 71 are not subject to the prescription of lucrative matters 72.

XXIII. If any movable or immovable property is donated to a religious place, or to a city, or for the redemption of captives, or if an inheritance, or a legacy, or a fideicommissum is left to them, or if anything is purchased by them: personal actions, and *in rem* actions, and hypothecary actions ^B are competent, and they are excluded only by a prescription of one hundred years 73: for this time is that of a longer life.

Notes of Annibal Fabrot

... short while after: *Ornaments of the sacraments, redemption of captives is.* And *cap. cod.*: *Indeed if in its own.* Add the same 2. *Contra relat. Symm.* William of Newburgh, *De rebus Anglicis* lib. IV, c. 58: "And because the venerable discretion of the fathers not only permitted that these (he speaks of sacred vessels) be expended for the redemption of any captive faithful, but even admonished it. Much more strongly was it judged that the same ought to avail for the redemption of a captive prince. And so, throughout the whole breadth of the English kingdom, sacred chalices are delivered to royal tax-collectors, or are redeemed indulgently, that is, a little below their weight." See what I have said on Justinian’s *Inst.* tit. *De rer. divis.*

"Do not give sacred vessels and priestly vestments as a pledge to a trader or tavern-keeper." *Capitul. Caroli M.* lib. 1, c. 94: "Concerning sacred vessels of the Church, which we find are being given as a pledge by some in certain places, it is forbidden that this be presumed to be done by anyone henceforth, unless compelled solely by the necessity of redeeming captives." The reason for this constitution is brought forward in *l. 21, c. eod.*: "Since it is not absurd for the souls of men to be preferred to any causes or vestments whatsoever." Thus it is read in the manuscript of Brod., although not incorrectly in the common text, *vasis*. Theophili scholiastes: as in Zonar. as in *Annal.*: Liban. in the common passage against a homicide: Chrysostom in *Epistol. Pauli ad Roman.* homil. 26. *Concil. Toletan.* IV, cap. 48, those whom the Greeks call *oikonomoi*, that is those who act in place of bishops in ecclesiastical matters, etc. And alienated things are vindicated by the *oikonomos*, since there pertains to him the separation and construction of basilicas, and the actions of the church in judicial proceedings, whether in bringing or in responding, as is in the epistle of St. Isidore to Leudefred, bishop of Cordoba, 1. XIV, in *â. b. t.* Cujacius.

... manuscript of Brod.; *in some places*, *curialis*, less correctly. tit. *Cod. de imponenda lucrat. descript.* lib. x, and Balsamon, *ad Phot.* tit. 2, c. 10, 58.

^C ... inscription, *Nov. cxxxi, c. 6*, with the hundred-year prescription abrogated, which they introduced in the East, *c. eod.*, in the West, *Nov. lx*, with the canon of the Council of Carthage also antiquated. Balsamon on the said canon. Therefore the Church, if it acts, is repelled only by a forty-year prescription. But if one acts against the Church, the times established by the laws are observed, *Nov. cxli, c. 4*, that is: the Church, when it is convened, protects itself by a thirty-year prescription. See Constant. Hermenop. lib. 1, tit. 3, § 52, and the scholion therein, which indeed is absent from two codices of the Royal Library, and is by Theodore Hermopolita on the said *Nov. cxx*. But the scholiast of Harmenopulos, whoever he is, with his errors, which you might marvel at, copied Theodore: for in the royal manuscript also it is read. *Oux ἔx* - a short while after, since in the former place it is read, *δεκαετίας*, in the latter, however, *διετίας*. But the Church which acts against the Church is removed by a thirty-year prescription according to the canons, as the same Theodore writes, who also relates that the Novella 141 of Justinian did not derogate from the annual, biennial, and triennial prescription. Whose Novella the old interpreter, after so many editions, must be corrected to the faith of the Greek text thus: "but as much by annual and triennial prescription, as by others," etc. Concerning those things which are left for the redemption of captives, and concerning those things which are owed to cities, see below lib. III, tit. 5.

*One hundred years.* Which is the longest limit of life, *l. 56 D. De usufr. 1. 8 D. De usu et usufr.* (these words were missing in the edition of Leunclavius), from these *Novellae* 18, since this time is recognized to be generally the end of the life of a long-lived man. Artemidorus, 2, 75. *Καθ' χρóνον*. Justinianus says, generally; for it is reported in the books *Περὶ μακροβίων* of Lucian and Phlegon that many have prolonged their lives further. Diodorus Siculus: See Egesippus in Euseb. *Hist. Eccl.*, c. 52; R. Chrysostom, homil. on St. John the apostle, Georgius Phranza *Chron.* lib. III, c. 1. Concerning this prescription, Innocent III, in his Epistle to Nicholas, Bishop of Tusculum: "For we do not see by what right they can protect themselves, since they can show neither a concession made to them by the apostolic see, nor prove a centenary prescription against the Roman Church."

XXIV. The Church of Constantinople is the head of all others.

XXV. The Chartularies of the Great Church.

^A for the scrinium of the East, 15 chartularii; for the diocese of Asia, 16; for that of Pontus, 15; for that of the rent, 15; for that of Thrace, 8; for that of Antioch, 6; for that of Calopodium, 6; for that of the expenses, 10; for that of the legacies, 9. And they receive, by way of customary fees, on emphyteutic contracts, a fiftieth; and on leasehold and other contracts, a hundredth. If anyone be made chartularius beyond the stated number, he is removed from his position, and he gives 15 pounds to the Church, and he who made him chartularius gives 20. ^B Let the economi, with the approval of the patriarch, calculate with careful scrutiny the expenditures incurred by the emphyteutae, contractors, and administrators, with each economus inquiring into those things which pertain to the administration committed to him; as for the rest, they shall do so [in accordance with] the written command of the patriarch, who subscribes to the accounts with the word "I have read." Whatever is calculated without such observation, the economi must pay from their own resources. The chartularii receive a hundredth of the calculated expenditure and of the funds brought in; but whoever takes more, he immediately loses both the office of chartularius and his priestly dignity. The economi must render accounts to the treasury every month, or at most every two months; for otherwise they incur danger.

^C XXVI. If anyone writes the Lord Christ as heir, without adding the name of an oratory, the church of the place in which the deceased resided is deemed to be written. The same holds for a legacy and a trust, and it is contributed to the feeding of the poor. If he leaves something to any of the holy angels or martyrs, without mentioning a house, if there is such a house in that city or in its territory, it receives the legacy; but if there is not, the one in the metropolis receives it. If there is no such house even there, the local churches receive it, with other houses giving way to them, unless it is proven that the deceased had intended something else and had spoken differently. For then the truth of the matter, and not what was written, prevails. ^D If he specifies a certain place, and many of the same name are found in the city or in its vicinity, if he had a greater affection for one of these, or frequently visited it, it is deemed to have been left to that one. But if no such one is found, the house among them that is most in need receives the legacy.

Title II Paratitla

Book 1, tit. 1, const. 2, the beginning of which is, *Nullus*. Churches are entrusted only to bishops who observe the orthodox faith.

[index: entries preserved]

^A Book 1, tit. 3, const. 10, the beginning of which is *Si quis*. Whoever attempts to cause any incursion or any injury to a place of the Church is punished with capital punishment.

Book 1, tit. 3, const. 13, the beginning of which is *Si ecclesiæ*. Whoever violates the privileges of churches pays a fine of five pounds of gold.

Book 1, tit. 3, const. 20, the beginning of which is *Si quis*. If a cleric, or monk, or deaconess, or solitary dies intestate, and the Church or monastery has not entered into their inheritance because they were a registered person, a freedman, or a curial; if the Church or monastery has actions against them, it shall pursue them against the heirs of that person.

Book 1, tit. 3, const. 22, the beginning of which is *Si qua*. Let the privileges bestowed upon Churches by ancient constitutions remain in force. ^B

Book 1, tit. 3, const. 26, the beginning of which is *Decernimus*. Let no public building, nor one destined for the enjoyment of the city, be snatched away by monks or clerics for the Church.

Book 1, tit. 3, const. 32, the beginning of which is *Omnes*. All privileges which have been bestowed upon churches by ancient constitutions, let these remain in force.

Book 1, tit. 3, const. 34, the beginning of which is *Omnia*. Let the privileges granted to churches, or to persons, or to the property of churches, be secure. ^C

Book 1, tit. 5, const. 44, the beginning of which is *Tῶν ἱερῶν κανόνων (Of the holy canons)*. A presbyter or deacon cannot engage in marriage. Therefore, if anyone does such a thing, and gives some property to his wife, either by donation during his lifetime or in a will, the church to which he is subject claims these same things for itself.

Book 1, tit. 3, const. 53, the beginning of which is *Raptores*. The property of one who has abducted a deaconess or a virgin, the church to which she is subject receives in full ownership.

Book 1, tit. 4, const. 5, the beginning of which is *Nemo*. This constitution discusses and explains from what crimes the festival of the Paschal days sets one free. ^D

Book 1, tit. 5, const. 1, the beginning of which is *Privilegia*. Let heretics not claim for themselves the privileges granted to churches.

^A For it is permitted only to the orthodox that these things be granted.

Book 1, tit. 5, constit. 8, the beginning of which is *Quicunque*. The monasteries of the Eutychianists, or Apollinarists, shall be assigned to the parish church.

Book 1, tit. 5, const. 10, the beginning of which is *Si quis*. No one of the orthodox shall alienate or give to a heretic any property in which there is an orthodox church or oratory, by way of testament, gift, last will, or any other method.

Book 1, tit. 9, constit. 12, the beginning of which is *Coelicolarum*. Places assigned to the houses of worship of the Coelicolae shall be assigned to the churches.

Book 1, tit. 9, constit. 18, the beginning of which is *Hac valitura*. A newly constructed synagogue of Jews or Samaritans shall be assigned to the church.

Book 1, tit. 11, constit. 5, the beginning of which is *Omnia loca*. Sacred places in Carthage, donated to churches by the emperor himself, shall remain in their possession, never to be taken away.

Book 1, tit. 12, constit. 5, the beginning of which is *Denuntiamus*. Let no one in the most holy churches, or in other venerable places where prayers are offered, employ clamour or move sedition, fearing as a consequence the ultimate punishment.

Book 1, tit. 13, constit. 4, the beginning of which is *Jamdudum*. He who is manumitted in the church before the people and the bishops obtains certain liberty.

Book 1, tit. 13, constit. 2, the beginning of which is *Qui religiosa*. When anyone is manumitted in church, the bishop being present, he should become free in such a way that all the solemnities observed in manumission have been fulfilled. ^C

Book 3, tit. 12, constit. 2, the beginning of which is *Omnes*. Let all judges, the crowds of the cities, and the guilds of all arts rest on the Lord's Day; but let it be permitted to farmers to be intent on their own work.

Book 3, tit. 12, constit. 5, the beginning of which is *Quadraginta*. In the quadragesima of the fasts, let no criminal investigation take place.

Book 3, tit. 12, constit. 6, the beginning of which is *Omnes*. On the fifteen days of the Paschal season, and on the Nativity of Christ, and the Theophany, and on every Sunday of the week, and in memory of the passion of the apostles, ^D

^A let spectacles cease, and the law courts, and the exactions of the food supplies, and the collections of private debts.

Book IV, tit. 63, constit. 5 (91), of which the beginning is, *Cessante*. The deans of the Great Church of Constantinople have immunity: but they do not number more than five hundred.

Book VI, tit. 48, constit. 1, of which the beginning is, *Incertus* (93). In the eighth chapter, the constitution says that one may leave a bequest or inheritance to churches.

Book VII, tit. 72, constit. 10, of which the beginning is, *Cum apud*. When creditors sell the goods of a debtor, and the price paid is found to be greater than the sum which is owed to them, the surplus ^B must be deposited in the archives of the church, to be kept for the former debtor.

Book X, tit. 16, constit. 11 (95), of which the beginning is, *Illud*. The form of public taxes, which exists among the Achaeans (96) and also the Macedonians, must be adhered to. And although this Church of the Macedonians has obtained a remission (97) [of taxes]; yet for this reason it ought not to relieve others of their tributes under its own name.

Book XI, tit. 75, constit. 4, of which the beginning is, *Absit*. Let the church also recognize the burden of the construction of roads and the repair of bridges.

Book XII, tit. 37, constit. 17, of which the beginning is, *Cum sæpe*. If soldiers are assigned to any church, ^C having been transferred from another place, and the provision of food supplies in that place causes loss to the fisc, the church which summoned them shall acknowledge the loss.

Book XII, tit. 50, constit. 20, of which the beginning is, *Nullus*. Not even the most holy churches, in time of military expedition, shall have an exemption from mandatory transports or secondary logistics.

Read also the seventh constitution published after the Code among the Novels, of which the inscription is, "Law concerning not alienating or exchanging ecclesiastical property," and what follows; and the 44th, of which the inscription is, "Concerning the ^D alienation and payment of immovable ecclesiastical property"; and the 13th, of which the inscription is...

"Concerning the exchange of immovable property of houses of prayer." For you will find in the seventh [novel] that all alienation of ecclesiastical property is generally forbidden, but that emphyteusis alone is permitted, and that only to two persons, namely, the recipient himself and his heir. But in the 44th, [you will find] that when debts—public or private—weigh upon the churches, they may alienate immovable property, provided a decree is interposed. And in the 52nd [novel], in the second chapter, you will find it discussed that houses of prayer may make exchanges of immovable property among themselves, provided that a decree be first issued regarding them. Yet in this [latter] constitution, the great Church of Constantinople, and every sacred place subordinate to it, is excepted in the 44th [novel] as well. ^A

TITLE III

Interpretatio I. Clerics and their slaves are not subject to extraordinary exactions or to the duty of providing quarters. ^B

II. Clerics are not subject to sordid duties, nor to the payments of merchants, since what they acquire goes toward the support of the poor. Nor [are they subject] to extraordinary duties, nor to the supply of baggage-animals; neither their estates, nor their wives, nor their children, nor their spouses [are subject to these].

III. Clerics recognize the fiscal obligations of their lands and the duty of transport.

IV. If the officials or the catholiciani, having abandoned... ^{C D}

their service in the public post and the primipilate while owing debts to the treasury, become clerics, they are restored to their own status. But if it is established before the magistrate, through a deposition of the office itself, that they are not liable for accounts or duties and are of approved life, they are transferred without loss of their own property. But if they have become clerics clandestinely, they concede two parts of their assets to their children; or, if there are no children, to their relatives; or, in their absence, to the members of their order; and they retain the third part for themselves. ^A V. If anyone abducts, or even merely attempts to take as a wife ^B a consecrated virgin, he is punished with capital punishment. VI. Presbyters, and deacons, and exorcists, and lectors, and ostiaries, are exempt also from personal duties. VII. A bishop does not give testimony. VIII. Presbyters give testimony without torture, provided however that the litigants themselves can charge them with perjury. But other clerics give testimony according to the order of the law. IX. She who has not exceeded her sixtieth year does not become a deaconess.

Annibalis Fabroti Notes

(16) Having abandoned the monastery. Officials therefore who were performing the public post service in the provinces. See to the Glosses of the Basilics on the word *Kourisōs*, and concerning the primipilate in the same place. (17) Fiscal obligations. Interverted accounts to the treasury, l. 1, c. eod., as in Tacitus, Hist. II, c. 95, 4: It is believed that he interverted nine thousand million sesterces in very few months. And Annal. lib. XVI, cap. 10, 2. With the patron’s affairs interverted, Petronius. If they had interverted your money, as in l. ult. D. De fugitiv. (18) Two parts. In ancient exemplars these are: "But if they thought to creep in by clandestine ^C arts, let them concede two portions of their own property to their children, or if offspring are lacking, to their relatives (others, *proprie substantiae*), with the third retained for themselves. But if the necessity of relatives is lacking, let the double portions be left to the offices in which they serve, with only the third portion retained." Others, *relicta*. The subscription, however, is to be restored thus: Given the Kalends of September, in the consulship of Taurus and Florus. (19) To take a wife. Avitus of Vienne, ep. 49: "Judge for yourselves how the modesty of heavenly justice is moved, if He should see that a bride devoted to Christ, and endowed in the sanctuary of the holy altar with blessing, is—that I may say nothing more—looked upon wantonly," etc. See ibid. the notes of the very learned Jac. Sirmond. (20) Attempted. ^D Should suffer injury. The same *attentare* is *tentare*, see the Onomasticon, *attento*, *peirō*. See cod. LL. ant. p. 403. Theophanes in Michael the Amorian: "He abducts the virgin of the hermitage, and takes her to himself against her will. His brothers therefore approach Michael, explaining the matters of the drama. And he commands the strategos, if he should find it so to be the truth, to cut off the hand of Euphémius who dared this, according to the law." In more atrocious crimes indeed, the intent of the crime is punished with the same severity as the effect. Donatus on the Andria, act 1, sc. 5: "Not to complete, but to possess the will to do something toward a crime, is the effect," etc. The author of the book against the Predestinarian heresy: "He becomes guilty through his own free will without the deed. For the will is reckoned as a perfect work by a just judge: and he is said to have fulfilled everything who did what he could." A raptor is forbidden marriage with the one abducted. Cap. Caroli M. lib. 1, c. 194, Capit. Caroli Calvi p. 60. Who is a religious woman. Indeed as much the abductor as the abducted is punished by death, if the abducted woman later marries the abductor. Synod. Turonica, c. 21: "We decree that no one [touch] a virgin consecrated to God," etc. p. 228, col. 2, at the end of tom. II concil. Edict of Theodoric, §17, *Raptorem*. See the solemn formulas issued with the cod. LL. Antiq., formula 81. Today by pontifical law, a marriage holds, if the abducted woman with whom there is capacity for marriage has later consented, cap. ult. extr. De raptoribus. See Capit. Car. M. p. 21, 51, 181, and cap. Car. Calvi p. 60: Zonaras on can. 12, synod. Chalced. See tom. I Concil. Gall. p. 337. Drusius on Sulpic. Sever. p. 76, Sozomen vi, 3; Nicephorus, x, 39. (24) Ostiaries. Omit [read as:] *acolythos*, which is not found in the three Balsamon manuscripts nor in the Basilics nor in the old book. Episcopi; neither willing nor unwilling can they be called to court to give testimony, but sent to their home. Psellus on the title of the Synops. Attaliota. A High Priest does not testify either against his will or with his will. So the Vestals: from which we understand what the sense of these words is in l. VII c. eod.: "Neither by honor nor by laws is a bishop compelled to testify." Delete the word, "to be said," there, which is lacking in the old exemplar. See what I have said on Cujac. Paratit. h. tit. (25) Without torture. *Chōris basanōn*, let them not be tortured. ...some old codices, even in the best...

^A X. If any persons shall break into a church against a bishop or clerics, or shall commit any wicked act in that place or during the liturgy, they shall be publicly accused by all and are to be punished with capital punishment, even if the bishop connives at the crime committed. But if those who break in exceed the civil officials in number, the ruler shall summon soldiers by public letters.

XI. In churches of estates and villages, by reason of their magnitude and from their own number—not from elsewhere—clerics are made, in such a way, indeed, that they contribute their own capitation tax and the fiscal burden.

XII. He who is engaged in the curia [civil administration], if after the interdiction he becomes a cleric, is restored to the curia by the action of the president.

XIII. He who violates the privileges of the churches by violence or by simulation pays a fine of five pounds of gold.

^B Annibal Fabrot’s Notes.

...or priests of the second order. Hincmar of Rheims, opusculum 13, chapter 3: It must be known that these seventy carried the figure of the presbyters, that is, of the priests of the second order. And in opusculum 48, chapter 20: Concerning presbyters, namely, men of the second order, they are not to be dismissed. Second-order priests in the constitution of Theodosius and Valentinian, appendix to the Theodosian Code, number 20. Possidius, *Life of Augustine*, chapter 4: Because the place for the presbyter, even if he himself were worthy of a greater one, was nevertheless approaching the episcopacy.

(26) *In episco*... [text of note restored from Latin column] ...some old codices, even in the best, the correctors have changed it and restored the more familiar name of bishop, which I observed in Gregory of Tours when compared with the ancients and others. But it is also shared with presbyters; whence, for the sake of distinction, the bishop is called of the first order, the presbyters of the second. St. Jerome on Jeremiah, book III, chapter 13: Priests also have in ecclesiastical honor a second rank; similarly for they themselves also are priests, and have the office of teaching entrusted to them. Œcumenius on 1 Tim. ch. II, v. 8; Facundus of Hermiane, book XI, chapter 3: Because he presumed to sacrifice, which is lawful for every individual even for a priest of the second order. Leo I, in sermon 10, on the praise of love: For not only to us are the prelates...

(28) *In liturgy*. In the cult place itself. See the ancients on D. 1. 10. Saresberiensis and others. Codex of Brodaeus and Menagius: In the cult place itself. In the appendix: or to the cult and the place itself.

(29) *Conniveat*. It does not demand revenge for its own injury, to whom the sanctity of the glory of forgiving leaves it. See Nicephorus Gregoras, book IX of his *History*, where he speaks of the patriarch Isaiah. See Sulpicius Severus, p. 494. *Tantam*, etc., edition 8, and Prosper of Aquitaine, 11 *De vita contemp.*, chapter 5.

(30) *Officium civile*. Civil apparitor, for apparitor on D. 1. 10.

(31) *Prædiorum*. Therefore possession for a rustic estate, as in law XXXVI, D. *De minor.*; Symm. 10, 41. Glosses: *Ktēma*, estate, farm, possession, in the estates and villages established for the Church, law 10, § *De hæretic.* Theophil. 2. *Instit., de inutilib. stipulat.*

(32) *Et onus fiscale*. Capitation and tax burden, D. 1. 11.

(33) *Versatur in curia*. Curial, decurion. Curiales are not to be ordained as clerics. Nov. VI, chapter 4, and Nov. CXXIII, chapter 45. See St. Ambrose, epistle 31, canon *præterea*, dist. 51, Joann. Saresber. *Polycrat.* book VII, chapter 20.

(34) *Post interdictum*. Let him be restored to his pristine condition. Law 12, ch. same. See *Gesta purgationis Ceciliani*, p. 32.

(35) *Præsidis opera*. Vigour and shrewdness of judgment, D. 1. 12.

(36) *Qui per vim*. For an interpretation of this law, see book LX of the *Basilica*, tit. 54, chapter 21; yet he does not seem to do violence who rashly harms ecclesiastical privileges, and who has no regard for the slaughter of the Church, or despises it. But neither does he bring violence who neglects it by simulation. Thus in book XVII, chapter same: If anyone shall have violated these, that is, if anyone shall have acted against them.

(37) *Aut simulationem*. Read in Greek: *Hē parapros-poiēsin*.

^A XIV. If anyone shall have been cast out of the episcopate by the judgment of the bishops, and shall act tumultuously, and shall wish to re-enter the same episcopate, he is cast out to a distance of one hundred miles from the city, and has no license to approach the emperor, or to obtain a rescript; but even if he shall have obtained one, he does not enjoy it; and those who have afforded him aid incur indignation.

XV. If forbidden conventicles of clerics are held in private houses by the intent of the masters, the houses themselves are confiscated.

XVI. An *ascriptitius* [enrolled colonus] does not become a cleric against the will of his master, and he even becomes a cleric on that estate under this law: that he may provide the head-tax through the master himself, and cultivate the land through a substitute; while that immunity remains valid for him, which relieves certain head-taxes for the churches. If any rescript is opposed to this constitution, it is of no effect.

XVII. Clerics have no access to public actions, or to those which pertain to the courts; nor do those who are called *parabolani* have the power to attend public spectacles, or the courts, or the governors, except for the sake of their own lawsuit, or what pertains to their own community. If anyone shall have done contrary to these things, he is forever cast out of the guild, and is punished appropriately. ^{B C D}

^A XVIII. Parabolani from the decision of the Bishop of Alexandria are made—those who are not in constituted dignity or curiales—and they must take care of the sicknesses of the afflicted and obey the commands of the Pope. XIX. Priests and clerics should live only with their own mothers...

Notes of Annibal Fabrot

(49) Parabolani. Those who are occupied in the care of the sick and their bodies, l. 18 c. eod. Council of Chalcedon, act. 1: "For soldiers were rushing into the church with weapons, and the monks who were with Barsumas were standing there, and the parabolani, and another great multitude." The old interpreter: "For soldiers were rushing into the church with arms. The monks who were with Barsumas were pressing forward, and the parabolani, and another great crowd." Perhaps it should be read *parabolani*, and *parabolani* (παραβολᾶνοι), called thus, as the greatest interpreter of the Novels says, as if reckless, because those who are present with the sick in no small dangers are often involved in the contagion of the sick: the same, no doubt, in form and reason as are the *bestiarii parabolarii*, and with Socrates *paraboli*, that is, the bold. Hence Polybius said "a reckless venture" (*parabolon tolmēma*), and others "a reckless deed" (*parabolon ergon*). Concerning the significance of this word, see Scaliger's Epistle 60 and Hugo Grotius in the Epistle to the Philippians, ch. 2. See Nicephorus Callistus 14, c. 3.

(50) For those in constituted dignity are honored, l. 18 same title. For they are honored who perform a civil or military honor or dignity, or who have performed them. See the title *De honoratorum vehiculis*, and l. 19 cod. *De episcopali audientia*. "Les gens de qualité." An old inscription: HONORATI ET DECURIONES ET NUMERUS MILITUM CALIGATORUM. And in the letters of Leo, in the constitutions of Honorius and Theodosius to Agricola, prefect of the Gauls: "Honored men or curiales."

(51) To obey the precepts and dispositions of the most reverend priest, d. l. 18: *Papae*, that is, the bishop: than which nothing is more frequent in the writings of both the Latins and the Greek Fathers. St. Basil epist. 325: "The most blessed Pope Athanasius." See our Glossary to the Novels of Julian. Hence *papikon axiōma*, or *papikē axia*, in George Pachymeres, and *paparcheuein*, Balsamon on can. 1 of the Council of Nicaea.

(51*) Consort with women and the reputation of clerics. St. Basil in the Monastic Constitutions, ch. 5: "One must avoid as much as possible the company and conversation of women, unless some unavoidable necessity forces the conversation." We must flee from congresses and conversations with women, unless some very grave necessity compels us to them. Sulpitius Severus, dialogue 2, ch. 7: "Martin, whom no woman had ever touched." And therefore it is decreed in the principal constitutions and synodal canons that clerics should abstain from the company of foreign women (*syneisaktōn*), l. 49 cod. *De episc. et cleric.*, and can. 3 of the Council of Nicaea. Such a constitution was repeated in the fourth Council of Toledo, can. 42: "With clerics, he says, a strange woman must by no means live; for this also the constitution of the ancient Fathers has decreed." And can. 4: "Certain clerics, he says, not having a legitimate marriage, seek the forbidden company of foreign women." Finally, Justinian confirms that definition of the Nicene synod in Nov. 123, can. 29: "To presbyters, he says, and deacons, and subdeacons, and all inscribed in the clergy, we forbid, according to the vigor of the holy canons, from having any strange woman in their house." And Nov. 137, c. 1, cites the very canon of the Nicene assembly. And such women are called *syneisaktoi* in can. 3, that is, "strange" to the old interpreter, and to Rufinus of Aquileia, *Hist. Eccles.* book 1, ch. 6. Others prefer to interpret them as "subintroductas," or "intromissas," or "ascititias," in can. *Nullus*, and can. *Interdixit*, distinct. 52, and in canon 39 of the Council of Aachen; Arelat. ii, c. 4. And these *syneisaktoi* were women who were neither wives nor concubines, but women of a certain third kind whom clerics cherished with them, not for the sake of offspring or lust, but for the sake of piety, or at any rate under the pretext of piety, as St. Chrysostom writes in his sermon against those who have *syneisaktoi* women. "For there are some, he says, who take unmarried girls, without wedding or cohabitation, and place them in their homes, and keep them enclosed until their final old age, not for the sake of seeking children—for they say they do not have intercourse with them, nor for the sake of lust, since they say they keep them incorrupt and inviolate."

Exceptions are made, however, in the said can. 3 of the Council of Nicaea: a mother, daughter, sister, or aunt, and finally those persons who escape all suspicion. Which Justinian also confirms in the aforementioned Nov. 123, c. 29: "For in these things, nothing of criminal lust can be thought of as natural." L. 19 c. eod. law, *scævi*. Honorius and Theodosius in the constitution related in the *Collatio* of Carthage. The interpretation of the Donatists is searched out. Also excepted is she who was a wife before the priesthood. See the *Breviation of Canons* of Fulgentius Ferrandus, c. 122; George the Alexandrian in the *Life of St. Chrysostom*.

But because clerics and priests called such *syneisaktoi* women—whose intimacy they enjoyed—sisters, or mothers, or daughters, and covered their own improprieties under these names of piety, which St. Jerome indicates in his book *To Rusticus the Monk* on the form of living, and in the book *On Avoiding Suspicious Living*, and Ancyra, council can. 18, Theodosius in the said l. *Eum qui*, 19, decreed that no priest or cleric should have such "sisters" at home: and generally, that they should not have foreign women, nor any women at all except a mother, daughter, sister, and she who had been his wife before the priesthood. It must be observed what is said in l. 29, that a wife can be retained, which is also permitted by council of Nicaea can. 4, from those who have been converted from the Arabic language into the Latin tongue; and of the Council of Arles ii can. 3: "If any cleric, he says, from the rank of deacon, in his own house presumes to have a woman other than a grandmother, mother, sister, daughter, niece, or a wife converted with him, let him be held alien from communion." And the woman, if she is unwilling to separate herself, let her be struck with punishment. Those who already had wives, if they ascended to the height of the episcopacy, or to the honor of the presbyterate, did not exercise the office of a husband, but abstained from their wives. Gregory of Tours, *Hist.* lib. 1, cap. 44: "Among the Arverni, after Stremonius the bishop and preacher, the first bishop was Urbicus, converted from the senators, having a wife who, according to ecclesiastical custom, was removed from..."

their kinship, their daughters, their sisters, and those who had been married to them before that time.

XX. If a presbyter, or deacon, or deaconess, or subdeacon, or cleric, or monk, or nun ^A dies intestate, having no ascendants, or descendants, or relatives, or wife, his church or his monastery succeeds him. And if he is a person bound to the soil, his master; if a freedman, his patron; if a curialis, his curia succeeds him: provided that the actions which the churches and monasteries had against the deceased by reason of business dealings are reserved.

XXI. Bishops, presbyters, deacons, and officials of the rank of ^B *illustres* may fulfill the duties of a curialis by means of substitutes, at the risk of their own property.

XXII. Whoever, through calumny, accuses a bishop before a competent judge for the purpose of personal appearance, gives thirty pounds of gold. This constitution also confirms ecclesiastical privileges. Likewise, if a cleric or monk goes to Constantinople ^C for the sake of religion or some ecclesiastical business without letters from his own bishop, he is not considered a cleric or a monk.

XXIII. This constitution rejects Eutyches and receives the memory of Flavianus.

XXIV. What is left to the poor is valid; and it is not invalidated by reason of uncertain persons, or by anything else.

XXV. When plaintiffs do not wish to cite the clerics of Constantinople before the patriarch, they are judged only before the praetorian prefects, ^D whether they be plaintiffs or defendants, regarding personal and ecclesiastical matters, both in financial and criminal cases. And the clerics...

^A provide the steward, or the ecclesiastical advocate, as a surety, and no one else, up to fifty pounds of gold. And if the matter exceeds that, they provide security for the remaining amount without involving an oath, for both the laws and canons forbid a cleric to swear. When the steward is sued, he does not provide a surety; but both he and the other clerics pay two coins for the summons and the appointment of a representative, and they spend the other costs of the trial more frugally.

XXVI. Let no one ^B bring a cross or relics of martyrs into a public place or one set aside for public spectacles, but into the churches, according to the judgment of the bishops.

XXVII. He who has fulfilled military service, or an office, or a liturgy, rightly becomes a cleric, to whatever status he may be subject, with the claims that lie against him and his assets being reserved. Primipilares are excepted, for they are perpetually bound.

XXVIII. That which is left for the ransom of captives is not invalidated on account of uncertainty. And if ^C the testator has specified the person who ought to attend to the matter, he himself demands what was left and fulfills the provision according to his own conscience; but if the testator did not specify the person, the bishop of the city of the testator's origin receives the donation left, and manifests the quantity of money given to him before the magistrate with the acts intervening, and after a year [reports] the number of those ransomed and the prices given by him. But if the testator was a barbarian by nation, and there is doubt about his city, the bishop of the place where he died receives the money and fulfills what was provided. Whoever knows what was left does well in telling the magistrate and the bishop, and is not a delator.

XXIX. Only ^D the apocrisiaries of the monasteries are permitted to go out and enter into the cities. But if they are found to be disturbing the simpler sort by means of dogmas or some counsel, they are to be chastised according to the laws.

^A XXX. He who becomes a bishop through the intervention of a bribe, as well as he who accepts money in order to ordain or elect him, is deposed and branded with perpetual infamy.

XXXI. The orphanotrophoi [orphan-managers] of Constantinople hold the place of guardians and curators, without bail, whether in lawsuits or in other matters; and in the presence of the tabularii [notaries], or where acts are intervened, they receive the goods of orphans—here, indeed, before the master of the census; but in the provinces, before the governors or defenders—and guard them; or, having made an appraisal, they sell them off, because they are easily corrupted; or they do so by reason of debt, or for some other just cause. They are not, however, liable to curatorial or tutelary accountings.

^B XXXII. Bishops, clerics, and monks are not to be brought before another, but are convened before the governors of their own provinces. But if they are found in Constantinople, they are summoned before the praetorian prefects alone, where their honor is also preserved, and they receive advocates. And in the provinces, for [Annibalis Fabroti notae.]

[Note (70): Tam qui largitione. The law passed against those who purchase the priesthood with the venality of a price. For simony is a crime than which none is more atrocious, cap. Sicut 6 of this title, and it is called a capital crime in can. Qui studet 1, quaest. 1. A simoniac is a butcher of Christ, Christoktonos, Isidore of Pelusium, 1, 315, to Leontius the bishop. And therefore it is a public crime, and all are admitted to its accusation, just as in the crime of lese-majesty, even those marked with infamy and those accused of crimes, l. Si quemquam 51, & ult. c. De episc. et cler., cap. Tanta est 7, can. Licet 31 of this title. Ivo of Chartres, in epist. 27, to Eudo: Besides this, according to the custom of the Roman Church, action is taken differently against the heresy of Simony and of the Neophytes, than against other crimes; for while in other accusations the innocence of the accusers and witnesses is sought, for the allegation of such crimes even infamous persons are admitted. They defile themselves with this crime who bestow something for spiritual things, or accept it before ordination, or in the ordination itself, or after ordination; for to accept is to accept at any time, en oioidepote chrono, as Tarrasius, bishop of Constantinople, says in his Epistle to Pope Hadrian, and it is reported in can. 21, 1, quaest. 1. For this is to reduce grace under a price, which cannot be sold, as it is in can. Si quis episcopus, d. quaest. 1. For the thing of God does not consist in a price, as Tertullian elegantly says, Apolog., cap. 39. Ordinations, therefore, which take place through the intervention of a price, prayers, or service, are condemned, can. Ordinationes, d. quaest. 1. How bitterly, however, the Holy Fathers inveighed against simoniacs is sufficiently evident. St. Jerome on Matthew cap. x; St. Augustine in sermon 37, ad fratres in Eremo; St. Gregory the Pope in Epistola 50, lib. iv to Virgil, bishop of Arles. Add Isidore of Pelusium, epist. 276, lib. v; Wibert the archdeacon, in Vita sancti Leonis papae, lib. ii, c. 4; the canonical epistle of Hincmar of Reims to the clerics and people of the Church of Laon, tom 1 Concilior. Gall. See also the Synod of Chalcedon, c. 2; Cassiodorus 9; Balsamon, on the councils, p. 540 et seq. Those to be ordained used to swear that they were not ordained simoniacally. V. de Comer. Toletan. ii, c. 9; Capitula of Charles the Bald, p. 55, 192, 364 et seq.; Capit. Car. M. p. 20 and 352. See on Novel CXXIII. There is also the penalty of excommunication against simoniacs and their procurators and mediators, and they can be absolved by the supreme Pontiff, d. cap. 2. in Extravag. Hincmar of Reims. In cap. 52. And those who have acquired ecclesiastical dignity by money are deposed and cast out from the fellowship of the faithful. Can. apostol. Among the Jews, however, the pontificate was venal, writes Chrysostom, serm. 48, tom. V. John of Salisbury presents the whole law, Policraticus book vii, cap. 20, which I once compared with an old book of D. Peiresc, nor will I defraud the reader of this variety of readings. For in place of these, "nuda electionis conscientia," Salisbury has in his parchments "n. e. scientia." And thus it is also read in the written codex of John Broda, shortly after, where it reads: "Auri sacra fames in penetralia proserpat?" Salisbury and cod. B better: "Auri sacra fames penetralia veneranda proserpit." Meanwhile, no one fails to see that that is from Virgil's Aeneid. Soon after: "Itaque castus et humilis." Salisbury and cod. B: "Ita castus et hum." It follows: "non pretio nec precibus." Follow the reading which is in the parchments, "non pretio, sed precibus." He looked to that of Horace: "Nunc prece, nunc pretio," epistola 2 of book ii. Finally, observe these: "Ut quos par facinus coinquinat, et aequat, utrosque similis poena comitetur," being from those verses of Lucan, 290: "Facinus quos inquinat, aequat." Cassiodorus 12, 2. B. Cyprian, epist. 68: "And while they are joined in guilt, so they are not separated in punishment." Gunther of Ligurinus 8: "Consensu culpa meruit consortia poenae." Orontius, Hexaem.: "Par sententia damnat, quos par culpa tenet."

(71) Tabulariis praesentibus. Public persons, that is, tabularii, l. 31 c. eod. So in § 3 Inst. de adopt. public person, that is, tabularius.

(72) Apud magistrum censuum. Near the master of the census, d. l. 31. See above on l. 17. De sacros. Eccles.

(73) Episcopi. Orthodox priests of the faith, l. 32 c. eod. See above on l. 14.

(74) Non propelluntur alio. By the sentence of a greater or lesser one, judgments are not dragged out, d. l. 32; in two old codices the word "Commonitoria" is missing.

(75) Praefectos praetorio. Theodore the Reader: Leo legislated that clerics were to answer only to the praetorian prefect. The most distinguished Cujacius observed this place on Nov. LXXIX; for why do we not give everyone his own? Otherwise than most are wont to do today, who will not prove the writings of Cujacius which they turn to their own use: which certainly is nothing other than wishing their own to be judged an alien doctrine.

(76) Advocatos accipiunt. Whom he calls orators, d. l. 52.]

^A If they are sued regarding their own affairs, they provide only church defenders or economists as sureties. But when they are sued in civil matters before the prefects of the praetorium, they either provide other sureties, or make recognizances bound by their own property. Regarding ecclesiastical matters, only the economist is sued, ^B which ought to be done by the bishop; and he provides the church defender as surety. And in lesser courts, the bishops and clerics give to the executors for a summons no more than one *nomisma*. But if they are summoned in the provinces by an executor of the prefects of the praetorium by their decree, they give no more than two *nomismata* for court fees; but here an *extraneus* cleric gives one *nomisma* for court fees, for whatever amount he is being sued. An executor who insults or harasses any cleric whatsoever is deprived of his belt and punished with the ultimate penalty. The privileges of venerable houses are secure; and neither they themselves, nor their administrators, nor bishops, nor clerics, nor orthodox monks are subject to extraordinary or sordid services. But if it is proved that some are suing them unjustly, they shall pay them, by virtue of their privilege, all expenses incurred on the occasion of the lawsuit.

XXXIII. ^C Orthodox bishops and clerics possess and do not share what they acquire while in the clergy, even if they are still *filiifamilias*; but they have the power, even while living, to alienate it, and to transmit it by testament to outsiders and to descendants.

XXXIV. This constitution confirms the imperial and provincial privileges, and those derived from custom, of venerable houses and of persons who are under the orphanages.

^A of Constantinople, and grants to it all the privileges which the Great Church of Constantinople now possesses or shall possess.

XXXV. Let every city have its own bishop. And even if, by an imperial rescript, some person should dare to take away a city from its own bishop, or any part of its surrounding territory, or any other right, he shall be stripped of his property and branded with infamy; for the Scythian city of Tomi ^B is excepted, since its bishop also has care of the others. Furthermore, Leontopolis of Isauria is under the bishop of Isauropolis.

XXXVI. Ascriptitii, who without the consent of their masters become clerics or embrace the solitary life, remain as bound to them as if they had done no such thing. A slave, however, is not enrolled in the clergy, even with the consent of his master, unless he has first been manumitted. All bishops, clerics, and monks must answer to the magistrates, and if they ^C are accused, they come to the tribunal, but the judge does not come to them.

XXXVII. Slaves who, with the consent of their masters, have embraced the solitary life, become free. But if they abandon that discipline and betake themselves to another condition, they are recalled to servitude.

XXXVIII. Those who abandon their monasteries may not take back the movable property which they brought to them, whatever its quantity may be, even if there be no record of these monuments established concerning them. But regarding donations of immovable property, the legal requirements must be observed; for the eviction is not removed from the donor. Bishops or clerics must not force anyone to produce fruits, or to perform compulsory services, or otherwise to oppress them. ^D

compel to provide compulsory service, or in any other way inflict injury, or segregate, or condemn with anathema, or deny communion, or on these grounds refuse to baptize, even if such a custom has prevailed. The transgressor falls away from the Church and from its administration, and pays ten pounds. These things apply only in the imperial city and its district, and to the places that belong to metropolitans, or to those bishops ordained by them. ^B

XXXIX. Monasteries are subject to the bishops of their territories. And the bishops oversee the abbots; the abbots, the monks. And no one shall become the abbot of two monasteries. ^B

XL. Not the magistrates of Constantinople, not the defenders of the churches, but only the master of the census insinuates the final wills, with the violator of the law being subject to a penalty of fifty pounds. ^B

XLI. The decrees in the election of bishops are made by those who inhabit the city, for three persons who are orthodox and of honorable life, and have no children or grandchildren. ^B

XLII. A bishop cannot sell what has been acquired after the episcopate, or dispose of it, unless it has come to him from parents, or uncles, or brothers; but these belong to his church, and after his death, accounts of such matters are required by the steward. ^C But what they had before the episcopate they both sell and dispose of. The steward is appointed by examination, and annually submits an account of his administration to the bishop, and renders it, if he is found to have caused any loss or made any profit. But if he should die before the accounts are rendered, his heir is subject to these obligations. What has been said concerning things belonging to bishops also holds true for administrators, and those of hospices, infirmaries, almshouses, orphanages, and foundling hospitals. ^D

That which remains after the necessary expenses is to be applied to the improvement of revenues. Each of these persons shall render an account of their entire administration to their successor. If anyone becomes a bishop, or chorepiscopus, or visitor, or cleric, or oikonomos, or advocate of the church, or director of a hospice, or infirmary, or almshouse, or orphanage, or commissioner of the poor, or who is called a superintendent of beggars, through bribery: both he himself, and the one who accepts the money, are deposed from the priesthood, and the administrator is removed from his charge. Clerics who do not themselves chant the night, morning, and evening hymns, and who do not perform the divine service without reproach, are removed from the clergy, and are investigated by the bishops, and the two chief presbyters, and the exarch, and the advocate of each church. Any person who knows that any of these things is being violated may report the matter.

^A XLIII. A bishop, in any business whatsoever, shall not proceed to Constantinople without imperial command, but shall send apocrisiaries. Whoever does otherwise incurs indignation and is excommunicated.

XLIV. Monks and nuns shall not live together; but the nuns shall have one old man, an apocrisiarius appointed by the bishop, and for the distribution of Holy Communion, one presbyter and one deacon shall be given to them, who must be of virtuous life, and who shall not converse or live with them. The bishop who does not investigate these matters and correct them risks losing his bishopric.

XLV. If a presbyter, or deacon, or subdeacon contracts a marriage, they are liable both to the canons, which have no less force than the laws, and they lose their priesthood. Furthermore, their children, as being born of incestuous and nefarious unions, are bastards; and neither they, nor their mothers, shall receive anything from their fathers by way of succession, or gift, or feigned loan, or any other obligation; but the church of those same [fathers] claims such goods for itself.

^B XLVI. If anyone makes a disposition by way of institution, or legacy, or fideicommissum, or donation mortis causa, the person ordered to take care of the matter is compelled by the bishop, even if the testator has prohibited the bishop’s involvement, to see to it that: if the construction of a church was enjoined upon him, he must complete it within three years; but if a hospice, within the space of one year. For it is permitted to rent a house for the accommodation of the sick in beds until the structure itself is finished. But if they were ordered to provide anything once for pious causes, they are compelled to give it immediately upon the production of the testament and the inheritance, or the ^C inheritance, or the [heir is compelled to cause the monument to be built in accordance with the will of the deceased, even if, by strict interpretation, the heir might not be compelled to do so. Thus the Greeks interpret what is said concerning pontifical authority].

^D

^A And when such a time has passed, the bishop demands what was left, together with the fruits and increases from the time of the death of the one who made the testament. And he carries out the buildings of the churches, and of the xenones, and of the gerontocomia, or orphanages, or hospitals, or poorhouses, or the ransoming of captives, and he appoints administrators for them, if indeed the deceased did not expressly say who should administer them. But if he did name someone, the bishop has the authority to remove him if he conducts himself poorly, and to appoint another. If anyone, having been ordered and urged by the bishop, awaits the intervention of a magistrate, he pays double the amount of what was ^B left. If the bishop is negligent, the metropolitan, or the archbishop of that diocese, compels the fulfillment of what was disposed in the testament, and any citizen who wishes to move the matter is permitted to do so. If the heirs were ordered to act after their own death, the aforementioned time is calculated from the time of their death. And the magistrates compel these things to be fulfilled.

If a canal is bequeathed or donated to holy places, or to the clergy, or to monks, or to nuns, or to the poor, and simply to holy places, or to associations not prohibited, it is not permitted to alienate it, ^C unless an abundant income is given in return, not burdened by public taxes, and having an addition of not less than the fourth part of the net income, which, furthermore, can never be alienated. And such agreements and settlements must be made in writing for this purpose, and presented in the acts. If anything is done otherwise, the one who made the settlement loses the gold paid, and the holy place claims the thing, meanwhile retaining the property of the testator as a mortgage, as much in respect of the legacies as of the fruits and incomes, and every legitimate increase. Nor is a prescription of long time opposed to this action, since it arises year by year.

^D XLVII. An abbot is appointed by election, with an account of his practice and administration having been reviewed by the other monks, or by the majority, with the Gospels placed before them, and with the approval of the bishop intervening. The same holds for the head of a monastery of nuns, that is, of ascetics. But if the first ones found suitable for the office of superior are preferred over those who follow them.

XLVIII. If anyone having a wife or children— [The text continues into the next page regarding those who are neophytes.]

one who ordained him shall fall from their office.

XLIX. Someone rightly and usefully writes that prisoners should be heirs; and the bishop and the steward of the city in which he had his domicile receive the inheritance, and they spend it for the redemption of the prisoners, or the prices of the goods, or the returns from immovable property, without withholding any Falcidian portion. And they sue and are sued regarding debts. And someone also rightly writes that the poor should be heirs; and if he does not specify which ones, the xenodochus of the same city receives the same goods, and from the sale of them buys an income. But if there are several xenones in the city, the more needy one receives them, the bishop and the clergy under him examining the matter. But if the city has no xenon, the goods are distributed by the bishop or the steward to the poor, or otherwise to the needy, without any Falcidian portion being withheld. But if he left it to a manifest or uncertain name of a church or pious house, he alone receives it, without being subject to the Falcidian portion.

L. Bishops, and presbyters, and deacons have the *peculium castrense*, and they make their will regarding it legally; and their will is not subject to the complaint regarding an undutiful will.

LI. Clerics also rightly renounce the prescription of time in legal documents; for in general it is permitted to everyone to neglect those things which make for his benefit. ^B

LII. Bishops, presbyters, deacons, subdeacons, and monks, although they have no ordination, are immune from all guardianship and curatorship; but only on condition that they are engaged in their churches and monasteries, and do not neglect divine service.

LIII. A councilor and an official, if he becomes a bishop or presbyter, is removed from his position, even if previously ^C

Notes of Annibal Fabrot

^A If a cleric has been made a private citizen, he is restored to his proper ministry. But if he has lived as a monk from an early age, and has continued in that state, he becomes a presbyter, and a bishop, and an archimandrite, and is released from his ministry; the councilor in this case giving the fourth part of his estate to the council and the public treasury, but the civil official [taxeotes] giving it to the public treasury alone; and he who is ordained unlawfully is deposed. If any cleric either serves in the armed forces or, after being deposed, enters military service, he immediately becomes a councilor of his own city, or of another, up to the limit of one province, if his city has many councilors. But if he hides, the councilors seize his property, and they take one half in income—existing or to be acquired—and the other half is paid into the treasury of the prefects. The same also applies to a monk who serves in some way, or acquires a dignity, or engages in life in the courts. If anyone is burdened by a fideicommissum, or a substitution owing to lack of children, and wishes to marry to avoid this, he remains in possession of his property, and spends it while he lives, or leaves it as he wishes, provided it is for pious purposes. But if legacies were left to them even under the condition of producing children, they retain them, even if they produce no children. The same applies to women who profess virginity, and to clerics who are forbidden to marry. If one of a married couple becomes a monk, the other sends a writ of divorce, and there is place for agreements in the event of death, and the gain therefrom is reserved for the children common to that same marriage, if indeed the person who received that gain has not entered into a second marriage, and that woman herself remains unmarried for one year. ^B

LIV.

Annibalis Fabroti Notes. ^D […] (15) He is restored to his duty. Curia or cohort: as below, he is freed from his duty, that is, from the curia, or office. He is drawn back to the curia. (14) A fourth part. A portion [taken] from Nov. CXXVI, in which a monk after 15 years is freed from the curia, and thus can be made a bishop. (15) If anyone is burdened by a fideicommissum. See Nov. CXXVII, c. 67. (16) If one of the spouses. Civil law from the case of spouses permits, even if the other is unwilling, separation for the sake of religion, and such a divorce is said to be done by "good grace," that is, without the fault of either, and by common consent. And that divorce is freed from the penalties of the laws, l. 52, C. De episc. et cleric. Nov. XXI, c. 5, Nov. CXVII, c. 12. Which the law of the Church has not approved; for marriage is dissolved only by death. Asterius in a homily, in which he argues whether it is permitted for a man to dismiss his wife for any cause whatever: [he says] marriage is dissolved by death or adultery, and for no other cause. And to him who has once chosen the married life, it is not permitted to change his mind rashly, unless he has assumed the monastic habit; for the cause of God is paramount, and he is rightly heard who is said to wish to pass from the married state to a life that is more cultivated and more acceptable to God. He teaches, however, that the will of the other spouse must first be explored, tit. De conversione conjugatorum. St. Augustine, in an epistle: For such things ought not to be vowed by married people, except by common consent and will. See Hincmar, *De divortio Lothar. et Tetberge*, in response to interrogations: and St. Augustine, epist. 70; and Paulinus of Nola, in an epistle to Celantia; Cantacuzenus, book IV, cap. 42. (16*) Ravishers of nuns and deaconesses are killed with impunity by their parents, brothers, or guardians or curators.

^A are punished with the ultimate penalty, and the property of the ravisher and of him who helped him (as has been said) is taken by the monastery or asceterium itself; yet so that she to whom the violence was offered may be maintained therein from these goods. If it is only a deaconess who has been violated, and not an ascetria or monastria, the church to which she belongs receives the ownership of these goods, while she herself receives the maintenance. Those who helped them in any other way, or were assistants, or accomplices, or receivers, or afforded help of any kind, are subject solely to the ultimate penalty. And this provision applies to the aforementioned cases, even if one of the aforementioned women sinned voluntarily.

LV. If someone from among the betrothed chooses a solitary life, the simple earnest-money is returned, and nothing beyond that is lost. And in the case of those who have contracted a marriage, the conditions after death find a place. Parents are not permitted to hinder children who wish to embrace the solitary life or become clerics; nor for this reason ^B alone do they have the power to disinherit them: but if they have made a testament, they are compelled to leave them three ounces; but if they have disposed of nothing at all, the place is for succession from intestacy. But if they leave the churches or the monasteries, and become worldly, all their rights belong to the monastery or to the church. If a Christian has served a Jew, or a heretic, or a pagan, he gains his liberty. But also if anyone not yet a Christian approaches the orthodox faith, even if the master later has also embraced the Christian faith, he receives nothing for his price, the violator of the law being subject not only to a money fine, but even to the ultimate penalty. ^C

LVI. To those things which were ordained in the last chapter of the constitution of the present title, the present constitution adds, so that whatever was given exceeding the power of the one who leaves [it] by way of transaction or sale of a thing which is left in perpetuity — which the laws call *annalia* — in addition to the force of the said constitution, shall be adjudicated to the pious place, and [the offender] shall be subject to the one who gave [it], and [likewise] the one who contracted with him, and the heirs of the contractor shall provide to the other from their own [property] what was given.

Paratitla of Title III

Book 1, tit. 1, const. 3, whose beginning is, "We sanction." A bishop or cleric who is a Nestorian is cast out of the church.

Book 1, tit. 1, const. 4, whose beginning is, "No one." A cleric who publicly institutes a discussion about the faith is removed from the priesthood.

Book 1, tit. 2, const. 6, whose beginning is, "In all." Also in Illyricum the ancient canons of the churches shall be kept: so that when any ecclesiastical doubt arises, it shall be decided by the judgment of the archbishop of Constantinople, a synod being held.

^A Book I, title 2, constitution 12, whose beginning is, *Privilegia*. Those things which proceed from the public treasury to the most holy churches on account of the poor ought, without hesitation and without diminution, to be paid to them, in whatever species they may be.

Book I, title 2, constitution 13, whose beginning is, *Generali lege*. A woman consecrated to God, or a widow, may in a will or codicil leave whatever she wishes to a church, or a monastery, or the clergy, or the poor.

Book I, title 2, constitution 14, whose beginning is, *Jubemus*. An economist who alienates immovable property of the Church of Constantinople, or civil grain-supplies, or tenant farmers, is removed from the office of economist.

Book I, title 2, constitution 15, whose beginning is, *Si quis*. If anyone has promised to build a hospital, or a poor-house, or a guest-house by way of donation, he is compelled to fulfill this through the providence of the bishops and economists in each city.

Book I, title 2, constitution 16, whose beginning is, *Decernimus*. This constitution wills that the privileges of the clergy and monks remain firm.

Book I, title 2, constitution 17, whose beginning is, *Sancimus*. This constitution decrees concerning the alienation, and exchange, and mortgage, and emphyteusis, and donation of things belonging to the holy churches of Constantinople, and to the martyria, ^B and guest-houses, and poor-houses, and orphanages of it, and [also] those bishops who receive their ordination from it, of the city and its regions, and those who are ordained by the metropolitans of the cities [and regions]. Read it, therefore, for it clarifies the text and commands fully when, and how, and for what reasons, and by what documents, and in what manner, and before whom alienations or emphyteuses of things belonging to the same places are made. For you will learn from it also concerning which things it legislates. And let it not escape you that it commands the same things to hold for emphyteusis as it established for things belonging to the Great Church of Constantinople, regarding things ^C belonging to the other mentioned places. However, the constitution exempts sacred votive offerings (21) from this law. And note from its own words that it says only sacred gifts are not to be alienated.

Book I, title 2, constitution 18, whose beginning is, *H Megale*. The Great Church of Constantinople received seventy pounds of gold from the imperial liberality for the burying gratuitously of those who die.

Book I, title 2, constitution 19, whose beginning is, *Illud*. He who makes a donation up to five hundred coins to a guest-house, or a hospital, or an orphanage, or to the poor themselves, does not need the records of legal acts.

Book I, title 4, constitution 2, whose beginning is, *Si clericus*. If a cleric, before a final sentence, ap- ^D peals...

Mima*. She who sins by simple fornication shall by no means use the habit of a perpetual virgin or a deaconess. ^B

Book I, title 4, constitution 6, whose beginning is, *Addictos*. No cleric, or monk, or one called a synodite, shall seize or detain a condemned person. But if, contrary to what is ordained, they seize a condemned person, let them be punished according to their rank by the governor. And if the governor sees a great band of clerics, one superior to his own forces, let him refer the matter to the emperor regarding them, so that the due punishment may be inflicted upon them. Nor is the bishop of the places in which this wrong was done by the clerics or monks free from blame. For all the offenses of these persons ought to be corrected by him, since they also bring reproach upon him when they are committed.

Book I, title 4, constitution 9, whose beginning is, *Judices*. The bishop must take care of those who are in custody, and if he sees that they are being neglected, he should notify the governor of the province of this.

Book I, title 4, constitution 10, whose beginning is, *Mathematicos*. Let the mathematicians deliver the books of their own error to the bishops, so that they may be burned before their eyes, and thus they themselves may become Christians.

Book I, title 4, constitution 12, whose beginning is, *Si lenones*. If anyone has abused his own daughter or slave for the purpose of pimping, it is permitted to those who are thus forced to be prostituted to approach the bishop, and in this way to be delivered from such a miserable necessity. ^C

Book I, title 4, constitution 15, whose beginning is, *Decernimus*. He who has a lawsuit against a cleric is not unwillingly compelled to litigate before the bishop of Constantinople.

Book I, title 4, constitution 18, whose beginning is, *Θεσπίζομεν*. When a soldier complains concerning the quality of the goods which are provided to him by way of provisions, the bishop must take care of those who pay tribute, and not allow them to be harassed by the soldiers.

Book I, title 4, constitution 19, whose beginning is, *Jubemus*. Let the ^D advocate be appointed by the vote of the bishop and the clerics.

Book I, title 4, constitution 21, whose beginning is, *Si praesens*. When there is room for the exception of non-payment of money, and the governor is not present, one may, by approaching the bishop, interrupt the time.

Book I, title 4, constitution 22, whose beginning is, *Οὐδένα*. Let the most religious bishops in every place search the prisons on one day of any week, either on the Wednesday or on the Friday.

Book I, title 4, constitution 23, whose beginning is, *Ἰδιωτικάς*. If anyone is cast into a private prison,

let him be released immediately by the care of the most God-beloved bishops. Note that if this matter is handled sluggishly, the bishop must report the matter to the one who, at the time, is in charge of private sacred affairs. For if they do not do this, he says, they will incur danger not only regarding property, but also regarding salvation itself. ^A

Book I, title 5, constitution 2, whose beginning is, *Omnes*. Bishops of heretics shall teach no faith which they do not possess.

Book I, title 5, constitution 8, whose beginning is, *Quicunque*. Bishops who favor the dogmas of Eutyches and Apollinaris shall ordain neither deacon, nor presbyter, nor, to speak simply, any ordination at all.

Book I, title 5, constitution 18, whose beginning is, *Τοὺς αἱρετικούς*. Let the bishops take care that what has been legislated against heretics is observed.

Book I, title 6, constitution 1, whose beginning is, *Antistitem*. A bishop who dares to rebaptize one who has already been baptized shall be stripped of his ordination. For this conflicts with the apostolic commands.

Book I, title 7, constitution 6, whose beginning is, *Eos qui*. Clerics or monks of the orthodox religion, if they convert to the dogma of Apollinaris or Eutyches, are severely punished and exiled from Roman soil.

Book I, title 9, constitution 48, whose beginning is, *Hac victura*. The bishop of a city shall not disdain to be judged before the defenders of the cities. For they have the right to judge the controversies of bishops. Note that this is gathered from the distinction ^B to the contrary. ^C

Book I, title 11, constitution 5, whose beginning is, *Προστάττομεν*. Bishops ought to cut out the impious religion of the Hellenes and report these things to the governor of the province.

Book I, title 12, constitution 5, whose beginning is, *Pateant*. It is necessary for armed refugees to lay down their arms. If they do not obey, nor yield to the exhortation of the bishop and the clergy, even with the promise of safety given by the administration of an oath, they may not, even so, be dragged away without the bishop’s counsel. ^D

Book I, title 15, constitution 6, whose beginning is, *Præsenti*. A cleric who is suspected of holding the property of one who has fled to the church shall render an account of his own conscience to the bishop.

Book I, title 13, constitution 4, whose beginning is, *Jamdudum*. Bishops shall subscribe in the capacity of witnesses to the instruments of those who are manumitted in the churches.

Book I, title 15, constitution 2, whose beginning is, *Qui religiosa*. If a cleric, whether in church or in a testament, manumits a slave by any words whatsoever, the defender can judge the bishops.

Annibalis Fabroti notes.

^A it effects a Roman [status] and bestows direct freedom upon him, this being appropriate, once the testaments have been produced. The first [constitution] of the same title says that bishops also are able to grant freedom in church, and to leave [it] in testaments.

Book I, tit. 55, const. 8, whose beginning is *Defensores*. Even [the defender] of the city is appointed with the consent of the bishop and the clergy, and with them decreeing it. But a constitution of the same title requires that the defender first, in the acts of the archives, in the presence of the city’s bishop, and with the taking of an oath, should depose that he is addicted to the religion of the Christians.

Book II, tit. 3, const. 26, whose beginning is *Si quis*. Anyone who, on account of his priesthood, is able to have a prescription of the forum, if he has renounced this in writing, cannot afterwards make use of it out of regret.

Book II, tit. 15, const. 2, whose beginning is *Ne quis*. A cleric who has dared to affix royal veils or titles without the order of a competent judge, shall be punished by confiscation of his goods and deported, and is even deprived of his very liberty.

Book III, tit. 2, const. [...], whose beginning is *Απαγορεύομεν* (We forbid). If an executor vexes the person cited regarding the appointing of a surety—asserting that he is a person who is not solvent—let him accept him through the providence and judgment of the bishop.

Book III, tit. 43, const. 1, whose beginning is *Η τῶν Κύβων* (Of the dice). Bishops ^B are able to inquire into the game of dice and to forbid it from happening.

Book IV, tit. 30, const. 14, whose beginning is *In contractibus*. He who, on account of a certain difficulty, is unable to make a declaration of an exception of money not actually received through the president of the localities or the defender, let him have the liberty of approaching the bishop, and through the bishop himself to make this manifest to the creditor.

Book V, tit. 4, const. 25, whose beginning is *Si furiosi*. When the daughter of one who is insane is about to enter into marriage, the bishop ought to make inquiry concerning the reputation of him who is about to take her.

Book V, tit. 4, const. 29, whose beginning is *Πάσης* (Every woman). A stage-actress who wishes to be liberated, and is prevented by the president, may approach the bishop, so that by his providence she may betake herself to an honest and chaste life.

Book V, tit. 70, const. 7, whose beginning is *Quum*. Let curators be appointed by the judgment and arbitration of bishops. ^C

Book VI, tit. 23, const. 23, whose beginning is *Consulta*. It is shameful for clerics if they parade the fact that they know the discipline of advocates. Therefore, let the defenders of the churches, even if they are insinuated to them [to do otherwise], not accept... ^D

^A wills, and let them fear the penalty of fifty pounds of gold, which the magistrate of the census should be informed of.

Book VI, tit. 48, const. 1, whose beginning is *Certus*. In the eighth chapter, the constitution says that anyone may leave a legacy or inheritance to the church.

Book VII, tit. 62, const. 29, whose beginning is *Addictos*. Those who have once been found guilty of a crime and handed over by sentence should not be seized or detained by clerics, monks, or those called ^B *synoditae*.

Book VII, tit. 65, const. 4, whose beginning is *Teis syneidotas* (Those who are privy). Clerics appealing before sentence are fined fifty pounds of silver by the governor. But the treasury will not receive these; rather, they will be faithfully distributed to the poor and needy.

Book IX, tit. 4, const. 6, whose beginning is *Oudena* (No one). The most God-beloved bishop of each place shall search the prisons one day of each week, either on the Wednesday or on the Friday.

Book IX, tit. 5, const. 2, whose beginning is *Idiōtikos* (Private). If anyone is thrown into a private prison, by the care of the most God-beloved bishops ^C he shall be released from custody immediately. It should be noted that if the business proceeds sluggishly, the bishop must report the matter itself to the one who is currently set over sacred private affairs. For he says that if they do not do this, they will incur danger not only regarding property, but even regarding salvation itself.

Book IX, tit. 35, const. 4, whose beginning is *Atrocem*. He who insults a priest wearing priestly vesture commits a grievous offense.

Book IX, tit. 47, const. 26 (32), whose beginning is *Thespizomen* (We ordain). The bishops of each place shall ensure that, for those who are being exiled either ^D permanently or for a certain stated time, the things commanded by the constitution are observed.

Book X, tit. 9, const. 1 (33), whose beginning is *Thespizomen* (We ordain). Note that a councilor (*bouleutēs*) and a tax-official can become clerics, even if they are debtors to the public treasury. And by another argument, that an ordination performed upon such persons is performed rashly and with risk.

Annibalis Fabroti notes.

^A Book 10, tit. 27, constitution 5 (34), the beginning of which is, “Arbitratu religiosissimi civitatis episcopi...” (At the judgment of the most religious bishop of the city, and of the chief men among the possessors, the grain-buyer is created from the official service of the region itself, or he who is to be chosen for the office, or who fulfills or has fulfilled this duty.)

Book 10, tit. 27, constitution 4, the beginning of which is, “Interveniente cura episcopi...” (By the intervening care of the bishop, the grain-buyers of the region gather together.)

Book 10, tit. 31, constitution 26, the beginning of which is, “Quidam.” (If decurions, having abandoned the duties of the cities, cast themselves into monasteries, let them be stripped of their property, or let all be restored to the senate-houses.)

Book 11, tit. 40, constitution 5, the beginning of which is, “Nemo.” (Those who are prostituted to fornication by force may approach the bishops of the places, and thus they shall be freed from such a fate. Similar is that which the following constitution relates, when it says that a cleric and a monk can claim those who have been prostituted from this same shameful profession.)

Book 11, tit. 41, constitution 6, the beginning of which is, “Lenones.” (She who is under authority, and has been prostituted to fornication by her father or master, can approach the bishop and be freed from such force. The same law of the same title also hands this down generally. Therefore, read that [law].)

Book 11, tit. 75, constitution 4, the beginning of which is, “Absit.” (The care of bridges and the construction of roads is not reckoned among the sordid duties. Wherefore even the most holy churches are compelled to provide these things.)

^B Book 12, tit. 37, constitution 19, the beginning of which is, “Miles.” (A soldier, at the judgment of the defender, when the governor of the province is not present, and of the most religious bishop of the places, may receive the kind [of tax] from the contributor.)

Book 12, tit. 65, constitution 2, the beginning of which is, “Qui quædam nuntiando...” (He who has reported an information in a province, and wishes to exact more than 6 [nummi] from the provinces, let him be driven off by the providence of the bishop.)

Read also the fifth novella edited after the code, which has the inscription: “Concerning monasteries, and monks, and abbots.” Item 6, which has this inscription: “A law, which hands down how bishops, and presbyters, and deacons, etc., are to be ordained.” Item 22, the inscription of which is: “Concerning those celebrating second marriages.” Item 75, the inscription of which is: “This constitution interprets the prior constitution, which is concerning those entering into a monastery, etc.” Item 73, the inscription of which is: “At…”

^A the inscription of which is: “Constitution, which through honors and the episcopate frees one from paternal authority.”

For you will find in the fifth novel, how monasteries ought to be built, and what kind of life those who choose the solitary life ought to have, and within how much time they ought to take up the monastic habit, and to what punishment he who has abandoned the solitary life is subjected.

In the sixth, how bishops, and presbyters, and deacons, and deaconesses ought to be ordained: and what penalties are set against those who violate the constitution, and those who are ordained contrary to its decree.

In the twenty-second, that no one of those who are under ordination, from subdeacon and above, should marry. But if a reader or chanter should marry, he can no longer advance to the diaconate, and to the higher ranks of the priesthood. Similarly, everyone who does not have his wife from virginity cannot be deemed worthy of the ordination of subdeacon, or deacon, or presbyter.

In the seventy-sixth, that all who enter a monastery, who have children, whether it be a man or a woman, ought to make a testament for themselves. It also interprets the sixth constitution of the present work.

In the seventy-eighth, that all monks and nuns are judged before the bishop of the region, ^B and not before the governors of the province.

In the eighty-fifth, that every bishop deemed worthy is freed both from curial status and from paternal authority.

TITLE IV. Concerning Episcopal Hearing, and various chapters pertaining to jurisdiction, and care, and priestly reverence.

I. Interpretation. Even if traders belong to the divine house, they pay the merchant taxes. ^{C D}

^A

II. If a cleric appeals before the final sentence, the treasury does not collect from him the fifty pounds of silver penalty designated for others; rather, it is distributed to the poor.

III. On paschal days, no one is held in prison or in chains, except for an adulterer, one committing incestuous defilement, a ravisher of virgins, a tomb-robber, a sorcerer, a counterfeiter, a murderer, a parricide, and a traitor. For these, at all times, do not receive forgiveness.

IV. Mimes and prostitutes, who publicly ply their trade with their own body, must not use the habit of sacred virgins. ^B

V. The chief elders and the administrators of the guilds are to be Christians.

VI. It is permitted for clerics, and monks, and those who are called "synodites" to appeal within a certain time on behalf of those criminally condemned, but not to snatch and abduct them. For the magistrates are fined thirty pounds, and the leaders of the rank are punished capitally, if they do not immediately pursue such persons. If clerics or monks resist them, the magistrates report the matter to the emperor, and the bishops are not without blame if they do not prosecute the monks who commit such offenses.

Notes of Annibal Fabrot

(38) Paschal days. At paschal time, prisoners are freed. Leo the Great in his epistle, and Balsamon in the Nomocanon of Photius, tit. 9, c. 25: Monastics, heretics of Eutyches, in a suppliant petition to the pseudo-synod of Ephesus, in the acts of the Council of Chalcedon. Pagans also used to abstain from punishments on feast days. ^C

(39) Except for the adulterer.

(40) Of virgins.

(41) Violator of sepulchers. Those who search the chests of the deceased in order to plunder what is within them, he orders to be lashed if they are caught a second time after once obtaining pardon. The words of Leo: "For the evildoer to be corrected with stripes on his back and walls," through the scourging and the shearing. Theodorus Balsamon on the aforementioned Nomocanon, c. 32, in referring to the said Novel, uses these words: "By which we understand," etc., that "mastix" means flails, beatings. See our Glossaries on Cedrenus and Nicetas, Royal edition. But the same Theodorus does not think the said Novel of Leo pertains to sepulcher violators: "For it is one thing," he says, "to transfer the relics of the deceased, and another to handle what is among them with the intention of theft, although even this might be improperly termed a violation of sepulchers." See lib. LX of Basil. ^D

(42) And the sorcerer. He omitted sacrilege, *hierosylos*, in Photius’ Nomocanon, tit. 9, c. 23, and the evildoer, *goeta*, in Photius, ibid.

(43) Counterfeiter of money. *Paracharaktes*, adulturer and violator of money, l. 3, c. eod.

(44) Traitor. *Katà basileōs*, against the King, or state, something has been contrived. Traitor, *tyrannos*. See Theophilus, lib. i, tit. 1, and lib. iv, tit. ult. Photius, Nomocanon, tit. 7, c. 1, defendant for treason, l. c. eod.

(45) All these.

(46) Publicly ply their trade. The Greeks seem to have read "ply their trade with their body publicly, in the habit, etc." Thus Photius, Nomocanon, tit. 11, cap. 12: "Publicly plying trade from their body." Women who are prostitutes are prohibited from using the habit of those virgins who are dedicated to God. Nov. cxxiii, cap. ult.

(47) Guilds. There is a dispute among scholars regarding the reading of this passage. It is clear to me it is correctly read in old texts as *Ergasiolarum*, as it is here. *Ergasiotae* or *ergasiolani* are artisans and workmen, whose organized body and guild was fixed. However, I will say what I read in the book of the Nivellian edition, and which was said to have been Jacob Cujacius’s: "I clearly believe it should be read, *they are chosen from the number of the Christians,* and that it is a very old error." I do not doubt these words are Cujacius’s own, since I find written by the same in the *Paratitla* of the Code: "Regarding whom, unless an old error had taken hold, both in the Theodosian and Justinian code, we would read that they are chosen from the number of the Christians." See, however, the same Cujac. *Observ.* lib. XXIII, c. 3, and below tit. *Paratitla*. V. Fradini edit.

(48) Who are called synodites. Socrates, *Hist. Eccles.* iv, c. 23.

(49) Pounds. In l. 6, c. eod.

^A VI. In pecuniary cases only, among those who consent, and not against their will, the bishop judges with authority.

VII. The judgment of bishops is valid among those who have chosen the bishops as judges; and this judgment is like that of the praetorian prefects, from whom it is not permitted to appeal. But they are sent for execution by the apparitors of the governors.

VIII. The governor shall lead out those who are in custody on the Lord’s day, and ask whether they suffer any inhumanity from their guards; and he shall assign food to the needy through the *commentarienses*, and command those upon whom this task falls, that they be securely washed. If these things are neglected, the governor is fined twenty pounds. And the *taxis* and the *boule* are fined the same. And the bishop provides and reminds the governor.

IX. Mathematicians, not burning their books before the bishops, and not approaching the orthodox faith, are driven from every city. But if they are found in cities, publishing their own superstition, they are deported.

^B X. Let Christians provide that captive Romans returning home be not detained by anyone, nor suffer injuries or losses.

XI. If a procurer compels his own slave-girls or his own daughters to commit sin, upon approaching the bishops, they are released from that misery.

XII. A plaintiff who wishes, and is not coerced, brings suit before the bishop of Constantinople, or the *economus*, and his other clergy, whether he has a suit against them, or against the Church.

XIII. It is not permitted even for stage-players to lead or prostitute a slave-girl or a free woman. For the slave-girl is entirely vindicated into freedom without any loss to those who approach the governors or the bishops; to whom it shall also be a concern not to permit a slave-girl, or a free woman, to be present against her will with mimes, or choruses, or to perform any other spectacle in the theaters.

XIV. If anyone, not being orthodox, should become an advocate...

^A before the praetorian prefects, he is fined one hundred pounds in his very office. But if anyone dares to become an advocate and perform the duties of advocacy, he is struck from the register, and having his goods confiscated, he is permanently exiled; the provincial governor, meanwhile, is fined half his property and punished with five years of exile.

XVI. If a marriage is not prohibited by law, but the betrothed woman refuses the groom on account of a difference in religion: if her parents knew this before he had accepted the earnest money, she shall return double. But if they were unaware, or if the cause arose after the earnest money had been given, she shall return the simple amount. The same obtains for the groom regarding the receiving or losing of the earnest money.

XVII. By the selection of the bishop and the ranking landowners, a grain-purchaser is chosen from those serving in the office of that region, whether they have completed their service or are yet to serve. ^B Anyone who transgresses this is fined fifty pounds.

XVIII. Soldiers who are stationed and occupied with performing sentry duties in their posts shall accept the kind [of produce], which arises from the cultivation of the fields in the city or its surrounding territory, on behalf of their rations, by the judgment of the bishop and the governor, or of the defender if the governor is absent. And the taxpayer is not compelled to provide the commuted money value.

XIX. Defenders are appointed by the decree of the bishops, the clergy, the officials, the landowners, and the councilors, provided that those who know them first swear in the records that they are orthodox, with those who are aware of this testifying. The appointment itself is conducted in the presence of the bishop. ^C

XX. No one is admitted to any military service unless testimony has been provided for him in the records by three witnesses before the holy Gospels that he is an orthodox Christian; this act is conducted at the governor of the place where he intends to serve, with two solidi being paid on his behalf. But if this is neglected, the governor pays fifty pounds, his staff twenty, and the one who obtained the military position ten, and he is removed from the place. Those who have falsely testified are punished with corporal punishment. The fines are brought into the private treasury at the risk of the Count.

XXI. If someone is unable to send a formal protest regarding the non-payment of money ^D because his adversary is the provincial governor, let him approach another civil or military magistrate and reveal the matter to him; or, in the absence...

to the bishop, and thus he breaks the time. The same holds true in the exception of an uncounted dowry.

^B XXII. Let no one be cast into prison without the authorization of the governors or the defenders. And let the bishops visit those who are cast into prison once a week, and making diligent inquiry into the causes, let them see to it that the governors act in accordance with the laws; for the bishops have the authority to report to the Imperial Majesty concerning any negligence on the part of the governors and the officials.

XXIII. There shall be no private prisons, and those who are cast into them shall be set free by the providence of the bishops.

XXIV. No one may claim as slaves, or as registered servants, or as agricultural serfs, the infants born of free or slave parents who are exposed; nor, with such a distinction, is it permitted to receive them for the purpose of their nourishment, but they are free-born, and may transmit what they acquire to their own children or to strangers, in whatever way they wish; and the governors and bishops shall have the care of these things.

XXV. The bishops shall be solicitous regarding the matters that have been legislated for the prohibition of dicing, and they shall punish, through the governors and the fathers and the defenders of the cities, those who behave in a disorderly manner.

XXVI. He who has administered municipal affairs is obliged to render accounts, either voluntarily or being compelled to do so without loss by the governor, and this annually, ^C in the presence of the records and in the presence of the bishop and three of the leading men in the city, with the Holy Gospels set before them; and it being brought to light what indeed he expended, and what, as is likely, he turned over as the remainder; and he has security until the Imperial Majesty sends someone of its own choosing to inspect the accounts; and if he finds them rightly done, he provides security through a decree for the one who administered, and he is no longer subject to a second investigation.

It is not permitted for the governors to send into the provinces discussors, or logothetes, or equalizers for the investigation of public accounts. But if they bring forward a divine decree obtained by craft, the bishop has the authority to receive it, and report it to the Imperial Majesty; but if they possess orders, or monitoria, or ^D arbitrary decrees, the bishops and the governors shall not admit them at all; and if the bishop is silent, he incurs indignation.

He who presents in a province divine decrees, or constitutions, or the inductions of governors, or consuls, or the installation of...

^A statues, if he takes more than six solidi from the whole province, he shall restore fourfold what exceeds this amount; the bishop having the power to prevent this, and a penalty of ten pounds of gold being incumbent upon the governor, and the order of officials, and the bishop himself, if they do not prevent this excess of exaction.

One who is sent with a formula by the governors for the clearing of aqueducts, or the demolition of buildings, or other such things, or for the sake of images, is not to be admitted. A bishop who does not prevent this is subject to the same penalty.

The bishop and the father of the municipality ^B must take care that the local places of the municipality are not possessed by anyone without legal right, nor are they occupied without a divine formula; and they must inquire for those who hold possessions of waters by divine formula, so that one does not have less, and another more, than is appropriate.

If those who have been summoned in the provinces for an oath have immovable property, they are trusted; if not, they provide a surety for the matter up to the amount already prevailing. But if there is doubt as to the reliability of the sureties, they are tested by the bishop, the father, and the defender, coming together into one; and the one who has been sent receives nothing for the oath or for the sureties. But if, by special command of the emperor or by order of the highest magistrate, it is permitted to the collector to take the person without trusting him to surety, he does this without penalty; and here, too, the same penalties prevail against the bishop and the governor if they allow this law to be violated, or if, when something is violated, they do not immediately report it to the empire.

They must also ensure that nothing more than what is appointed is given under the name of sportula. By necessity, no writings should be made except for the six solidi of the aforementioned manifest decrees and other causes, and those things which are expended for the common useful civic needs, and those pleasing to all. The bishop will also observe what has been decreed ^C regarding the prohibition of the disarming of others and the conversion of the metata.

XXVII. If a father leaves a curator for a madman in his will, he acts without security. If he left none, his agnate, who is called by law, receives the curatorship. If no agnate exists, or is found unsuitable, another is appointed by the judgment of the governor. And if indeed he has sufficient patrimony, he does not provide security; but if not, he provides a surety according to the measure of his means. And in either case ^D [index: entries preserved]

he sets out the terms in a document, touching the Gospels, in the presence ^A of the governor and the bishop and three of the leading men, to do all things for the advantage of the madman. He also makes a public inventory, and thus takes over the property and manages it according to his own judgment; and the property remains under mortgage to him, in the likeness of the [management of] a bishop and the guardian of a ward.

XXVIII. The children of madmen and the mentally afflicted may contract marriage, with the dowry and prenuptial gift to be provided by their curators, according to the assessment—here, of the City Prefect, but in the provinces, of the governors and the bishops—with consideration given to both the reputation of the persons and the sum of the things being provided. And these things are to be done without expense, with the curators and the distinguished relatives of the madman and the person of unsound mind being present. ^B

XXIX. Let no one accuse a cleric initially before the patriarch, but before his own bishop; but if he holds him to be suspect, [let him proceed] before the metropolitan. But if he too is suspect, there must be joined to him as judges three men from the person of the whole synod, who are seniors in the order of ordination. And if one is not satisfied with the judgments rendered, let him appeal to the patriarch of the diocese, and acquiesce in the things pronounced by him, as if he himself had adjudicated [the case] from the beginning; for there is no appeal from the decisions of patriarchs. The same also applies in the case of those who bring suit against bishops. It is permissible, however, to complain against someone before the patriarch, so that he may remit the case to the bishop by his own letters; and the cleric who is sent by the patriarch or metropolitan receives no more than four siliquae in the name of court fees; or if the one who is accused be a bishop, no more than six solidi, in any case or sum whatsoever. The patriarch ^C hears an appeal, and the judges appointed by his commission are bishops or metropolitans. Whoever acts beyond these [prescriptions] restores double what he exacted beyond the measure, and is subjected to ecclesiastical penalty by the patriarch or metropolitan, and is removed from the ecclesiastical registers. These things, indeed, [apply] where the case relates to an ecclesiastical state. But if the dispute be civil, the plaintiff is not compelled to observe these [rules], but has the power to bring suit before the governors.

XXX. Every guardianship, if the patrimony extends up to five hundred solidi, is not established before the governor, but before the defender of the city, or the duumvir, and in Alexandria before the juridicus, in the presence of the bishop or public persons ^D, if they await their consent.

^A And if the city is prosperous, let there be security given according to the measure of the property, with an examination of the aforementioned persons and of the others customarily involved in curatorships, and two gold pieces paid. He who puts off the appointment for the sake of greater gain, or receives more, shall restore it all threefold, and shall lose the office of curatorship. But where the defender acts in the matter of the curatorship in the presence of the bishop, the proceedings must be deposited in the archive of the Church. In Constantinople, however, curators are appointed only by the praetor.

XXXI. If he ^B who holds property pertaining to me is absent, or is in the magistracy, or an infant, or insane, and has no tutor or curator, it is permitted to me to approach the president regarding this matter within the set time, or to present a petition, and the time is interrupted. But if I am unable to approach the president, I must go to the bishop and manifest my intention in writing.

XXXII. When the lord interposes a delay in receiving the emphyteutic property, the emphyteuta has the power to seal it; and in Constantinople, at the end of the three-year period, to attest this before the praetorians, or the prefect of the city, or a competent judge to the one who refuses to receive the emphyteusis; or, finally, before the patriarch, if the lord is a powerful person. In the provinces, however, it must be done before the president; or, if he is not in residence, before the defender or the bishop of the city in which the refuser lives; and to receive the testimony of one of them. And if even thus he does not receive it, the emphyteutic contract is not dissolved, and the emphyteuta gains the rent for the following time, until such time as the lord sends a formal protest demanding it. For from that time forward, but not for the preceding time, will he receive it; and after the three years have passed since the protest was made, if the emphyteuta is contumacious, he may expel him.

XXXIII. Whoever drags an enslaved or a free woman against her will into the stage or ^C the orchestra, or prevents her from being freed from this profession, or demands gold from her sureties, is proscribed by the president and the bishop and is expelled from the city. But if it is the president himself who uses force, he is prohibited by the bishop, or the bishop informs the Emperor. ^D The sureties are kept free from loss. And such women, if they are of noble birth, are legally married, even...

^A if dotal instruments intervene. The same holds true for the daughters of stage performers.

XXXIV. A bishop or cleric who plays at dice, or has company with those who play, or sits by them, or is a spectator at the theater or the games, is separated from the sacred ministry, and is deprived of his rations, and a time is set for him for repentance. And if within that time he is seen to have repented worthily, he obtains episcopal clemency. But if after the time has expired he persists, he is utterly removed from the clergy, and becomes a decurion ^B with his own property in the city of which he was a cleric: if that city does not have a town council, he becomes one in the nearest city that is in need of such a person. If he has no property, he becomes an apparitor. Patriarchs, bishops, church defenders, and the prefects of the praetorium of each diocese observe these things; and the remaining governors and defenders shall report these things to the priests themselves. And inquiry must be made concerning such matters, with careful investigation intervening, with the Gospels set before them, and calumniators must be subjected to indignation. The constitution also has various penalties against governors, and agencies, and defenders, if, when they know these things, they do not report them to the competent priests.

Paratitla of the Titles

Book I, tit. 2, constitution 6, which begins, Omni. Even in Illyricum the ancient ecclesiastical canons shall prevail; so that, when any ecclesiastical doubt arises, it shall be decided by the judgment of the Bishop of Constantinople, with a synod convened.

Book I, tit. 2, constitution 15, which begins... Whoever has promised to build a hospital, or an almshouse, or a hospice, shall be compelled to build these things under the care of the bishop of that region. ^C

Book II, tit. 3, constitution 7, which begins, Pars actorum. A bishop is not required, neither by honor nor by law, to give testimony. Therefore, he is not employed for the giving of testimony.

Book I, tit. 3, constitution 20, which begins, Si quis. When a bishop dies without having composed a will, the church succeeds to his inheritance.

Book I, tit. 3, constitution 21 (83), which begins, Ad similitudinem. A decurion who becomes a bishop may, through a substitute, at the risk of his own assets, fulfill the duties which he owes to his fatherland.

Book I, tit. 3, constitution 22, which begins, Si qua. Whoever has slandered a bishop shall pay thirty pounds of gold to the public treasury. ^D

Furthermore, very many constitutions throughout the same third title square with this present title, since they treat of bishops.

Book I, tit. 5, constitution 17 (84), which begins, The Holy. Annibalis Fabroti notes.

^A Of the holy. That what has been decreed against the Samaritans may be kept, let the bishops see to it.

Book I, tit. 6, constitution 1, which begins, *Antistes*. A bishop who dares to rebaptize one who has already been baptized is deposed from his rank. For this opposes the apostolic injunctions.

Book I, tit. 12, constitution 5, which begins, *Armed*. Those who have taken refuge should not be forced to lay down their arms unless they have been persuaded, or have yielded to the security promised by the bishop and the clergy, with the provision of an oath; not even thus is it permitted to drag them away without the judgment of the bishop.

Book I, tit. 13, constitution 1, which begins, *Long since*. Let bishops subscribe in place of witnesses to the documents of those who are manumitted in church.

Book I, tit. 15 [sic], const. 8, which begins, *Defenders*. Let the defender of the city be appointed with the assent of the bishop.

Book III, tit. 2, constitution 2, which begins, *We command*. If an executor vexes a person summoned for the sake of providing a surety, claiming that the person is insolvent, let him accept this via the providence and judgment of the bishop.

Book III, tit. 43, constitution 1, which begins, *The dice*. Bishops can investigate the game of dice and prevent it from happening.

Book IV, tit. 30, constitution 14, which begins, *In contracts*. He who, on account of some difficulty, cannot make a declaration of proof of non-paid money through the governor of the places or the defender, let him have ^C permission to approach the bishop, and through him make this manifest to the creditor, to the lender, or, I suppose, to the praetor.

Book V, tit. 4, constitution 29 (85), which begins, *Every*. A theatrical woman who wishes to be set free and is hindered by the governor, may approach the bishop, and by his providence betake herself to an honest and chaste life.

Book V, tit. 70, constitution 7, which begins, *When*. Let curators be appointed by the judgment and discussion of the bishops.

Book VII, tit. 40, constitution 2, which begins, *That more perfectly*. Someone may, by approaching the bishop, interrupt time running against him.

Book VIII, tit. 52, constitution 3, which begins, *We decree*. Let the bishop provide that an exposed infant is not reduced to slavery.

Book IX, tit. 4, constitution 6 (86), which begins, *No one*. Let the most religious bishops in each place inspect the prisons on one day of every ^D week, either on the fourth day or on Preparation day.

Book IX, tit. 5, constitution 2 (87), which begins, *Private*. If anyone is cast into a private prison, by the providence of the bishops,

it is to be dismissed immediately from custody. Note that when this matter is handled negligently, the bishop must report the matter itself to him who is at the time in charge of civil affairs. For if they do not do this, he says, they will incur danger not only regarding the property, but also regarding salvation itself. ^A Book XII, tit. 63, constitution 2 (88), whose beginning is, *We decree*. If anyone, by announcing a secret, should desire to exact more than six *solidi* from the provinces, he is to be repelled by the providence of the bishop.

Read also the novella published after the Code, whose inscription is: *A law which teaches how bishops ought to be ordained*, etc. Also [read] the 75th, which indeed lacks an inscription, but is necessary and humane. Also the 104th, whose inscription is: *A constitution [stating] among whom monks and ascetics ought to litigate*. And the 131st, whose inscription is: *A constitution which, through dignities and the episcopate, frees from ancestral power*. For you will find in the sixth [novella], in what way bishops ought to be ordained, and what penalties are established against those who violate this constitution, and against those who are ordained contrary to its sanction. ^B In the twenty-first novella it is decreed that a governor who does not wish to hear one who has approached him, is to be compelled by the bishop to hear the case; and that if a just reason exists, the bishop should hear the case together with the governor; and if the governor has unjustly condemned someone, the bishop is to examine this fact as well, and if he is conscious of the deed, he is to condemn the governor. And let no one approach the emperor who does not bring a letter from the bishop of his own city. For he will suffer the same punishments that the governor would have suffered if, having admitted an approach, he had neglected the case and not heard it. The same constitution also provides that the bishop shall not grant to a *magisterianus* license to exact greater fees than the quantity which is defined in this constitution. ^C In the 77th novella it is established that all monks and all nuns ^D ought to litigate before the bishop of the region, if they have any lawsuit against anyone. In the 80th novella (89) it is taught that whoever has attained the dignity of bishop is free from the curial condition and from ancestral power.

TITLE V. On heretics, and Manichaeans, and Samaritans.

Interpretation 1. Heretics do not have the privileges granted by pretext of religion, but they are subject to public services.

2. Let not heretics teach, nor let them disseminate [their] infidelity.

^A For a heretic is anyone who diverges, even by a little, from the orthodox faith, and he is subject to the laws against heretics.

III. The orthodox Church takes possession of the conventicles of heretics, even if they are in private houses. And they shall hold no litanies by night or by day. But if any such thing be done publicly or in a private house, the office of the prefect of the praetorium, which permits the thing to be done, is fined 100 pounds, and provincial officials are fined 50 pounds.

IV. The crime against the Manichaeans ^B and Donatists is a public one and is brought as an injury against the Divine Majesty. And they have nothing in common with the customs or the laws: they are proscribed, and deprived of all honors and rights of succession, nor do they give as a gift, nor sell, nor buy, nor contract in any way; and after death, they are accused as if for the crime of high treason; and all their last will and testament is rendered invalid.

^A And neither are their children heirs, unless they have withdrawn from their depravity. Those also are punished who, knowing and being aware, conceal them. Their slaves, however, are without blame if they turn to the Catholic faith.

V. The Arians, and the Macedonian Pneumatomachi, and the Apollinarists, the Novatians (or Sabbatiani), the Eunomians, the Papianists, the Montanists (or Priscillianists), the Phrygians (or Pepuzitae), the Marcionists, the Borboliani, the Messalians, the Eutychians (or Enthusiastae), the Donatists, the Andriani, the Hydroparastatae, the Ascodrugi, the Batracitae, the Pauliani, the Marcelliani, the Ophitae, the Encratitae, the Apotactitae, the Eremitae, the Saccophori, and the worst of all, the Manichaeans, [may] not have conventicles, nor may they pray; and the Manichaeans are also to be expelled from the cities, and are to be punished with the ultimate penalty. ^B All things also that have been decreed against heretics concerning those things which are given to them or left to them in a testament, as well as about their military service, and about their conventicles, remain valid; so that the churches may receive the houses in which they have assembled with the intent or the feigned permission of the masters. But if managers have permitted this, the masters being ignorant, if someone... ^{C D}

^A of free birth, they pay a fine of ten pounds, or they are exiled; but if slaves, they are scourged or condemned to the mines. They shall not assemble publicly, nor build places intended for conventicles, nor do anything in circumvention of the law, being deprived of all civil and military aid, and the decurions who allow these things are subject to a common penalty of twenty pounds; and no special [privilege] illicitly procured for them holds force. Furthermore, the things ordained against them for punishment and the prohibition of military service remain in force.

VI. The Nestorians are called Simonians, and it is not permitted to them to possess, read, or transcribe the things that have been written against the synod in Ephesus, but they are to be burned. And when there is a question concerning the faith, no mention is to be made of them, nor is anyone to receive them in any private place whatsoever. He who violates the law is punished by the confiscation of his goods. Nestorians are not called Christians.

VII. Those who are in the senates, or the military, or in collegia, if they are heretics, are bound by both pecuniary and personal obligations.

VIII. Those who follow the doctrine of Eutyches and Dioscorus are similar to the Apollinarists, and are subject to the same penalties ^B if they do not follow the four holy synods; and it is not permitted to them to appoint bishops or clergy; for both he who does this and he who is appointed are exiled and their property is confiscated; nor do they build churches or monasteries, nor do they assemble for the sake of religion. For the church takes for itself the house or the property where they have assembled, ^C provided it is proven before the magistrate that they gathered there with the consent of the master. But if, against the will of the master, a house-manager or the administrator of the estate, or anyone else, has received them for a parasynaxis or into a monastery, if he is of servile condition, he is publicly beaten with rods; but if he be a man of standing, he is fined ten pounds to the fisc. Neither do they serve in the military, and if they have been enlisted ^D and reject such as these and command that they be named Porphyrians, and that the things written by them be committed to the fire. And as for those who possess them and do not commit them to the fire, they are to be punished with death. Those who call these people Christians are greatly and severely deceived.

They are discharged from military service, and they have no communion with the laity, nor with any other city, nor do they stay within the village where they were born. Those born in Constantinople are driven out from every metropolis. It is permitted to no one to write against the Council of Chalcedon, nor to read, nor to dictate, nor to possess writings, since he is subject to perpetual deportation. And he who approaches ^A to learn pays ten pounds to the treasury; and he who teaches forbidden things is punished with the ultimate penalty. All the writings of Eutyches and Apollinaris are to be burned. If the magistrates and their ranks, or the *ekdikoi* (advocates), overlook these things, they are fined ten pounds to the treasury.

IX. ^B Heretics are not buried according to custom.

X. An orthodox person cannot in any way transfer to a heretic any fixed property that contains an orthodox church, since it is confiscated.

XI. Wherever Manichaeans are found, they are punished with capital punishment.

XII. Manichaeans are driven out from everywhere and are punished with capital punishment. The remaining heretics (and a heretic is anyone who is not orthodox), and the Hellenes, and the Jews, and the Samaritans are forbidden to hold magistracy, and to have dignities, or to litigate, or to act as advocates, or to become fathers of cities; so that they may not have the capacity ^C to commit outrage against, or to judge, Christians or bishops, or to serve in the military, except for those who are of the family of the *cohortalini*. For these remain, indeed sustaining the burdens, but not advancing, nor acting as executors against the orthodox in public or private causes. But he who attempts to undertake any of these things, while the attempt is made void, gives twenty pounds. And those who enter them into the public registers [pay] twenty [pounds], and the magistrates fifty; and all these are paid to the private treasury. Excluded are the Goths, who become *foederati* ^D and are honored otherwise according to what seems proper to the imperial power.

^A When parents disagree among themselves, he who wishes to lead the children into the orthodox faith shall prevail. Heretical parents, having no legitimate cause to accuse their orthodox children, are compelled to provide food and all other necessities for their maintenance, to join them in marriage with those who are orthodox, and to provide dowries and prenuptial gifts, under the supervision of the magistrates and the bishops.

XIII. Orthodox children of heretics, if they have not sinned against them, receive what belongs to them by intestate succession undiminished; and any last will and testament made contrary to this is rendered void, provided that their status of freedom is preserved, unless they are prohibited by some law. But if they have committed any offense against their parents, they are subject to accusation and punishment. However, even those who have sinned retain one-fourth of their patrimony according to the terms of the wills. The same [rules] also apply regarding Jews and Samaritans.

XIV. Heretics are unable to hold conventicles, or parasynaxes, or councils, or ordinations, or baptisms; nor are they permitted to have primates, or perform the offices of patriarchs, or to be entrusted with the procuratorship, or to take care of, or manage, estates ^B either by themselves or through intermediate persons, or to do any of the things that are prohibited to them. Whoever violates the law is in danger of capital punishment.

XV. Orthodox children succeed to Manichaeans only by intestate succession; if no such children exist, the fisc claims their properties, whether they have made a will, or made legacies, or bestowed gifts.

XVI. Anyone who, having defected from the Manichaeans, has become orthodox, if he is found performing the acts of that error, or merely consorting or conversing with Manichaeans, and does not immediately deliver them to a lawful judge, is subject to the ultimate punishment.

Annibalis Fabroti Notes

(28) *Plus valeat is.* Even if it is the father who objects, as Theodore of Hermopolis says.

(29) *Parentes haeretici.* Photius, 12, 2: "And how are they compelled to feed children who are orthodox, and to record them as heirs, and to give them a dowry and gifts before the marriage?" And Balsamon there.

(30) *Cum nullam.* If it is complained that he has only just become a Christian. See *Parat.* on tit. 9.

(31) *Accusantur et puniuntur.* Authors have expunged these words from the Basilics; for this reason Theodore Balsamon offers them thanks, on the *Nomocanon* of Photius, tit. 12, c. 2, at the end. Indeed, they seem to have done this not without shame; for although the parents may be heretics, the duty of piety is not to be violated. You say that it is impious, yet he is the father. For although he may be a despiser of laws and impious, he is nonetheless a father, as Justinian says, Nov. 11, c. 2.

(32) *Quadrantem.* Better than that of the disinherited, to whom nothing is left. Thus, the adopter of an impubes is ordered to leave him a fourth part of his goods if he has disinherited him, § Inst., *de adopt.*

(33) *Ecclesiae non sunt, sed quasi ecclesiae.* 1. C. cod., or rather latibula (hiding places) and speluncae (caves). Epiphanius, *Panarii* lib. 2: "Their churches, or rather hiding places and caves; for so I would call the assemblies of heretics." They are thought to be churches, but they are not, Optatus of Milevis, lib. 1: "Meanwhile you said that those are not churches among the heretics, and you said it rightly: for we know that the churches of each of the heretics are prostitute, without legal sacraments, and not of the law of an honest marriage." Which Christ does not reject as necessary, who is the Spouse of one Church, as He Himself testifies in the Song of Songs. Who while praising one, condemns the others, because besides the one, which is the true catholic [Church], the others are thought to be among the heretics, but they are not. Likewise, these are not *synaxes*, but *parasynaxes*, 1. C. in the same place, adulterous gatherings, as the interpreter says, Novella 131. Theophanes, concerning Theodosius: "He sent Eunomius into exile for making adulterous assemblies and deceiving the people." Not baptisms, but *parabaptismata* d. Nov. 131, adulterous baptisms, and for the same reason they are called Arians in *Dissert. Epict.* 2, cap. 9.

(34-35) *Vel officia patrum.* Heretics cannot become fathers of a city, nor defenders. This is the meaning of this place. Concerning the father of the city, see below tit. 9, cap. ult.

(36) *Manichaeis.* Vide ad 1. 4, supra eod.

^A And those who are in dignities and military service must diligently seek out such persons who are among them, and hand them over. For since a Manichaean when apprehended, if he says that he is known by some, they are fittingly punished as if they were participating in the same sins, even if they were not such persons themselves. For they appear to commit the same sins who know the one sinning and do not make him manifest. He who possesses Manichaean books and does not bring them to be burned, is punished.

XVII. ^B The synagogues of the Samaritans (58) are abolished, and if they attempt to make others, they are punished. They cannot have successors by testament, or intestate, except orthodox persons; nor do they grant or otherwise alienate anything to those who are not orthodox; but the fisc claims these things, with the oversight of the bishops and the magistrates intervening.

XVIII. ^C The things which have been legislated concerning the Samaritans regarding their synagogues and successions prevail also for the Montanists, and the Ascodrogitae, and the Ophites. For only the orthodox inherit from them by testament and intestate, and receive legacies. But the other heretics, that is, those who are not orthodox, and the pagans, and the Samaritans, do not serve in the military, nor do they become officials, nor do they hold any public office, nor do they teach, nor do they act as advocates. And if anyone, in order to obtain any of these things, pretends to be orthodox, and it is found that he has a heretical wife or children, and he has not brought them to the orthodox religion, he is expelled. But if he also escapes detection, he cannot donate any of his property, or otherwise transfer it to a heretic; but the fisc claims both these things and the heretical inheritance which devolves upon him. ^D For, in general, those who have participated in military service, or dignity, or advocacy, or public munificence, or sustenance (39), have only the orthodox as heirs, and whatever comes from them in any way to a heretic, the fisc claims for itself. If one of the spouses is orthodox and the other a heretic, their children must become orthodox. But if some have become orthodox and others remain heretics, only the orthodox are heirs of either parent. But if all are heretics, the orthodox agnates or cognates succeed; or if they do not exist, the fisc. The law also contains various penalties against those who are negligent, and who do not pursue or denounce the magistrates and the civil and military offices; and they [the bishops] report concerning the negligent magistrates to the emperor. And the fines accrue to the fisc.

^A XIX. If both parents are heretics, donations are made only to the orthodox children, not to the heretical ones, and from them their inheritance is entered. But if all are heretics, orthodox agnates or cognates succeed, or if these are not extant, the fisc. Furthermore, regarding their substance, heretics are compelled to feed their orthodox children, and to provide for them daily expenses, and to give dowries, and to register pre-nuptial donations.

XX. Heretics who celebrate any synaxes or baptisms are punished as violators of the laws, and those who provide their houses to them for this purpose are subject to the penalties already established. Only the orthodox, having workshops within the sacred enclosures, may enjoy privileges, not however the heretics; nor may they transact business within the sacred enclosures, because they do not listen to the divine mysteries. The Montanists do not even live with those of their number who become orthodox; and the so-called bishops or clergy from among them are expelled from Constantinople. They are forbidden to trade in slaves, and those among them who are needy are not provided by the courts or the churches with the so-called ^B maintenance allowances ^C belonging to those established in dignity. And he who provides them with unauthorized patronage pays a fine of ten pounds; and the magistrates, the count of the private estates, and their staff, pay ten pounds for their negligence.

XXI. A Jew or a heretic does not testify at law against an orthodox person. However, they bear witness against one another, except for the Manichaeans, and the Borborites, and the Pagans, and the Samaritans, and those similar to them, the Montanists, and the Ascodrugians, and the Ophites. For to these, every testimony and every legal act is forbidden. But other heretics are witnesses without distinction in testaments, and last wills, and instruments, on account of the greater ease in proofs.

XXII. A heretic does not even receive an inheritance or a legacy ^D from a military testament.

Tituli V Paratilla

^ABook I, tit. 1, const. 1, whose beginning is, *Cunctos*. All heretics are infamous.

Book I, tit. 1, const. 2, whose beginning is, *Nullus*. No place is assigned to heretics for holding congregations therein. This constitution also states that heretics are infamous, and that whoever does not follow the orthodox faith of the Nicene Fathers is a heretic.

Book I, tit. 1, const. 5, whose beginning is, *Tēs orthēs*. This constitution sets forth the definition of the orthodox faith, which those who transgress, being confessed as heretics, suffer the penalties of the laws. The seventh constitution of the same title, whose beginning is, *Ginōskein*, says the same things.

Book I, tit. 3, const. (50), whose beginning is, *Omnes*. An executor shall be orthodox; for it is not at all lawful for a heretic to serve in the military.

Book I, tit. 3, const. 54, whose beginning is, *Deo nobis*. In the third chapter, the constitution says that no heretic can have a Christian slave.

Book I, tit. 1, const. 3, whose beginning is, *Thespizomen*. Bishops and clerics who are Nestorians are cast out from the churches.

Book I, tit. 4, const. 5, whose beginning is, *Archigerontes*. Let no heretic become an *archigeron* or an administrator of a guild or of the *ergasiōtai* in Alexandria, but let him be in all respects a Christian by the provision of the Prefect Augustal and the department obedient to him.

^BBook I, tit. 4, const. 15, whose beginning is, *Nemo*. Let not heretics plead cases before the Praetorian Prefect, nor before any other magistrate whatsoever, in the capacity of advocates.

Book I, tit. 4, const. 16, whose beginning is, *Si legibus*. He who, while knowing, betroths himself to a heretical person, if he wishes to dissolve the betrothal, returns the double of the earnest money. But if he was ignorant, he is granted pardon.

Book I, tit. 6, const. 3, whose beginning is, *Nulli*. A heretic who attempts to re-baptize someone is subjected to perpetual exile, and the magistrate cannot mitigate the punishment fixed against him.

Book I, tit. 7, const. 6, whose beginning is, *Eos*. Clerics and monks, who, having departed from the orthodox, have become Eutychianists or Apollinarists, are to be driven forth from the Roman state, and as heretics, are to be subjected to the penalties of heretics.

^CBook I, tit. 9, const. 12, whose beginning is, *Coelicolarum*. If the *Coelicolae* do not pursue the orthodox faith, they are punished as heretics.

Book II, tit. 6, const. 8, whose beginning is, *Nemo*. No one who is a stranger to the religion of the Christians shall be admitted to the advocates’ order, through violation of the law.

^A fearing the loss of his office, the confiscation of his property, and perpetual exile.

Book V, tit. 1, const. 5, whose beginning is, *Mulier*. A bride who has contracted betrothal with a heretic may, for the reason that he is a heretic, renounce the betrothal. For she only returns the earnest money she received. The same takes place if the bridegroom is a Christian, but the bride is not orthodox.

Book X, tit. 32, const. 4, whose beginning is, *Omnes*. All who are subject to the curial status, of whatever status, sect, or religion they may be, are held to the fulfillment of the duties. Read also the constitution after the Novels, 50, whose title is: *Concerning the fact that Jews should not be freed from curial status*, and what follows. For you will find in it that no heretic is freed from curial status, and that they cannot provide testimony when the state is in doubt about someone, whether he is a curial or is fleeing from the corporate bodies of the government.

TITLE VI

I. A bishop who baptizes the same person a second time ^B is deposed.

II. He who rebaptizes an orthodox person is, along with him, punished in the extreme, provided he is of an age capable of the crime.

III. It is not permitted for heretics to bring an orthodox person, whether freeborn or slave, to their own baptism, nor to prevent their own slaves—not yet united to their faith—from approaching the orthodox religion. And he who does this, or allows it to be done, if he is ^C freeborn, is punished by exile and fined ten pounds of gold, and neither of them has the power to donate or to leave a testament. The governor who does not punish this, or is lenient in carrying it out, is subject to the same penalties.

This title has no paratitles.

TITLE VII. Concerning Apostates.

I. Whoever, having been a Christian, becomes a Jew, shall have his goods confiscated.

II. Whoever claims that one who has died could not make a will, on the ground that, by defecting from the Christians, he had become a Jew or a pagan, must bring the action within the established five-year period for an undutiful will.

III. Whoever from an orthodox believer becomes a heretic, he is not to associate with other people, and he may not testify, nor may he make a will, nor may he inherit property, and he has no place for repentance, as is the case with other offenses.

IV. A Christian who defects from the religion and offers sacrifice, or has commanded another to sacrifice, is subject to accusation by anyone, and no prescription of time may be opposed. Nor may he make donations from the time he defected from the faith, nor may he circumvent the law under the pretense of a sale, nor may he make a will; rather, all his property shall belong by intestacy to his Christian relatives, against whom he is allowed to bring an accusation even after his death, ^A even if no formal charge had been brought against the wretch while he was still alive. And his gifts and testaments are overturned, and they pass to those who are called by law.

V. Whoever induces a Christian, whether slave or freeborn, against his will or by persuasion, to embrace a forbidden religion, is liable to capital punishment and the confiscation of his goods.

VI. An orthodox cleric or monk who follows the superstition of Eutyches or Apollinaris is subject to the laws enacted against heretics ^B and is expelled from the Roman state, according to what has been legislated concerning the Manichaeans.

And as for what pertains to the paratitla: Book 1, Title 9, Constitution 18, the beginning of which is, “This piece of property.” A Samaritan or Jew ^C who defects from the faith of the Christians and becomes a Greek or a Jew, is liable to be accused even after death within five continuous years. If someone is said to have abandoned the Christian faith, he shall not bring forward a fictitious sale to deceive the law. ^D

^A

Book 1, tit. 12, constitution 1, which begins: *Judaeus*. A Jew who wishes to become a Christian for the sake of avoiding a charge or liquidating a debt shall not be accepted, unless he has first cleared the crime brought against him or has paid off the debt.

TITLE VIII. Concerning the fact that no one is permitted to carve or paint the sign of Christ on the ground, or on stone, or on marble.

He is most severely punished who carves or paints the venerable cross ^B on the ground or on a stone lying on the ground, and what has been done shall be removed.

This title has no *paratitla*.

TITLE IX. Concerning Jews and those who worship the sky.

I. What is assigned to the community of the Jews is not claimed.

II. Jews do not perform bodily service on their feast days.

III. Jews who stone one of their own who is becoming a Christian, or do anything mad against him, are burned, along with those who participated with them. ^C

IV. It is not right to make *metata* (billeting) in the synagogues of the Jews, because they are places devoted to religion.

V. Jews are not released from curial duties.

VI. Both a Christian who takes a Jewish wife and a Christian woman who marries a Jew are publicly accused of adultery.

VII. Jews do not [observe] their law in marriages. ^D

^A VIII. Jews according to law appear before the governors and are sued, both in those matters which relate to the forum ^B and in those which relate to their superstition and law. It is permitted to them, however, in pecuniary cases only, to choose Jewish judges, whose sentences the governors themselves execute, as they do the sentences of the judges given by them. IX. Jews determine the prices of things in their own market, and if any other person does this among them, he is punished. For it is just that to each his own should be entrusted. X. Jewish decurions are restored to their own curiae. XI. Jews shall not burn the form of the cross in the manner of Haman ^C. For otherwise they lose even the religion permitted to them. XII. Those who worship the heavens [Coelicolae] are subject to the laws promulgated against heretics, and the Church claims for itself the places assigned to their conventicles. For that which leads away from the Christian faith is contrary to it. XIII. Jews on the Sabbath and their other festivals shall do nothing, nor shall they be summoned for any fiscal or private cause, nor shall they themselves summon Christians. ^D

^A XIV. Jews are not to be harassed, nor are their synagogues or their houses to be damaged. For if they commit any transgression, legal action is to be taken through the magistrates. They, too, must do nothing against the Christian religion. ^B XV. Disputes arising between Christians and Jews are not to be settled by their elders but by the magistrates themselves. XVI. Jews who circumcise a Christian, or who order one to be circumcised, are to have their property confiscated and be punished with perpetual exile. XVII. The primates of the Jews shall bring the crown duty annually at their own risk to the sacred treasuries. XVIII. A Jew shall not, even by intervention of an imperial command, receive any administration, nor be counted among those designated for office, nor become a defender, so that he may not have the license to judge orthodox persons or bishops, nor shall he be a father of a city. They may maintain their synagogues if they are threatening to collapse ^C, but if they build new ones, the Church shall take them, and he who began the construction shall pay a fine of fifty pounds of gold. But whoever converts anyone who is not of their religion to their faith by contrary teaching, he is punished by the confiscation of his property and with capital punishment.

Tituli Paratitla

provide gifts for the sons according to the value of the estate; if he is blameless in other respects and the only complaint against him is why he has become a Christian. ^A

Book 1, Tit. 5, const. 21, whose beginning is, *Quoniam.* Note that the term "heretic" does not include a Jew. For when this constitution forbade a heretic from testifying in court, it added: "And let not a Jew give testimony." Thus, because the constitution made mention of them separately, it implies that it does not wish for Jews to be included under the designation of heretics. Note this, as it is a matter much inquired into.

Book 1, Tit. 7, const. 1, whose beginning is, *Si quis.* One who, having been a Christian, becomes a Jew, and is convicted, is subjected to the confiscation of his property. ^B

Book 1, Tit. 11, const. 6, whose beginning is, *Christianis.* Let not Christians abuse the authority of their religion, and let them not offer violence to Jews while they are living quietly and doing nothing turbulent.

Book 1, Tit. 12, const. 1, whose beginning is, *Judaei.* A Jew who, for the sake of evading a crime or avoiding a debt, wishes to become a Christian, shall not be admitted otherwise than by clearing himself of the crime brought against him or settling the debt.

TITLE X.

Interpretation 1. Let no Jew, or one of any other heresy or custom, have a Christian slave in any manner whatsoever. And if he does have one and circumcises him, the slave is set free, and the master is punished with capital punishment.

Constantius and Constans also legislated that a Jew should not purchase a slave; for he shall be forfeit to the public treasury; and if he dares to circumcise a slave, he is to be punished by the sword, and his property confiscated. ^D

[alt-version omitted]

^B II. A pagan, a Jew, a Samaritan, and anyone who is not orthodox cannot possess a Christian slave. For that slave is liberated, and the one who purchased the slave pays thirty pounds to the [public] treasury.

Titles of the Paratitla

Book 1, tit. 3, constitution 4, whose beginning is, "To us by God." No Jew, or pagan, or heretic may have a Christian slave. If anything of this sort is discovered, forthwith let the slave be seized into freedom. Book 1, tit. 7, constitution 5, whose beginning is, "Him who..." whoever, by force or persuasion, leads a person from Christianity to an abominable sect, let him be beheaded, with his property confiscated. Book 1, tit. 9, constitution 16, whose beginning is, "The Jews." We impose confiscation of goods and perpetual exile upon those Jews who are convicted of having circumcised a Christian, or of having commanded another to do so.

TITLE XI.

Concerning pagan sacrifices and temples.

I. Let temples be closed, and let no one sacrifice. If anyone commits this, he is punished by the sword, and his property is confiscated. The governor or president who has not carried out the execution is punished in a similar manner. ^C

Annotations of Annibal Fabrot

(94) Pagan. Charlemagne in the synod at Ulm or Fulda. (95) Samaritan. A Christian slave whom a Samaritan has purchased becomes free immediately, through the constitution of Justinian, ch. 2, which is among the Novels of Justinian as CXLIV. (96) Whoever is not orthodox. For a heretic is anyone who is not orthodox, l. De haeret. Therefore it is forbidden even to heretics to have Christian slaves, l. Deo nobis, 54, cod. De episc. et cleric. The Greeks at l. 9, § ult. D. De donat. Things which cannot become the property of someone cannot be given to him: as a Christian slave to a heretic person. From l. 2, h. tit. The slave immediately becomes free, and the buyer is fined thirty pounds of gold. Basilica, d. tit. 54, cap. ult. But a Jew is forbidden not only to have and circumcise a Christian slave, but also a catechumen, Basilica lib. 1, tit. 4, cap. 47, ex l. 2, h. tit. (97) Let temples be closed. Constantine had abolished the sacrifices of the pagans, and had ordered their shrines, chapels, and temples to be closed, nay even destroyed, and churches to be built. Orosius, Histor. lib. VII, c. 28, in fin.: "He decreed that the temples of the pagans be closed without any slaughter of names." Nicephor. lib. VIII, c. 18, 25. Gregory the Great created a decree concerning the consecration of gentile temples. And before Gregory, Cedrenus writes that Constantine the Great had assigned the temples of the gentiles to Christ in these words: [Original script column: see facsimile]. He added such laws. First, that shrines consecrated to idols should be assigned to men dedicated to Christ. And from the same Theophanes, Anastasius in Church History: "He," he says, "wrote the first law for the temples of idols to be handed over to those who are assigned to Christ." Cassiodorus, however, writes in the Chronicle that by the edict of Constantine the temples of the gentiles were overthrown, which Senator transcribed from the Chronicle of Jerome. Julius Pollux in the Chronicon; whose scholiast adds that he tore down three temples in Constantinople, of the Sun, of Diana, and of Venus. Cedrenus and Theophanes also write that Justinian assigned the quasi-churches of heretics to Christians. But so that the writers who say they were only to be torn down and those who say they were only to be closed can be brought into agreement, it is clear that he ordered some to be closed, and others to be overthrown. Certainly it is not sufficiently clear that all were immediately overturned from l. c. eod., in which Constantius sanctions in all places and every city that the temples should rather be closed, and with access forbidden, the opportunity for committing crimes by wicked men should be denied. Minucius in Octavius, "He attributes altars to the lost and the wicked": Item: "The lost and the criminals had gathered," etc. See what we have said at l. 3 cod. Th. eod. Moreover, this l. is not in the Basilica, as Photius also notes Nomoc. tit. c. 4. Regarding the fact that a few pagans remained in the times of Basil and Leo, see what I have said at Parat. Cujac. h. tit. (98) Who has not carried out the execution. Who has neglected to pursue and punish.

^B II. Let no one engage in divination by means of extispicy (99). For he is severely punished (1-2) who, against the prohibition, seeks the truth about present or future things.

III. Sacrifices are prohibited (5), but the decoration of public works (4) is not to be abolished. But if anyone produces a rescript or law for their destruction (5), it shall be taken away from him and referred to the emperor.

IV. Without sacrifices and prohibited superstition, let public spectacles (6) and banquets intended for the hilarity of the people (7) be performed according to ancient custom.

V. Let sacred places (8) that are in Carthage pertain to the Imperial house (9), except for those that have been gifted by the emperors to any person or to churches (10).

VI. If Christians commit violence or seize those things that belong to pagans and Jews living in tranquility (11), they shall restore twofold what they have seized (12); and the magistrates, and the officials, and the decurions (13-14), if they have not vindicated [the victims], but have permitted these things to be perpetrated by the people (15), shall be subjected to a similar penalty.

Notes of Annibal Fabrot

(99) Let no one engage in extispicy. For the inspection of the liver, and the entrails, see 1. 2. c. eod. For they examine the liver and the entrails of the sacrificed animal to predict the future. Petronius Arbiter: "With an opened breast he pulled out the strongest liver, and from thence predicted the future to me." An uncertain author in Suidas: "The Greeks of that time believed they were offering a pleasing sacrifice when, having sacrificed to some demon, they obtained signs of the causes in the liver of the victim." For, as they say, the future is revealed more clearly in its entrails; and many of the barbarians even consult the entrails of human beings.

(1-2) For he is severely punished. Basilica, lib. 1, cap. 12. The penalty of the cross hangs over him. Balsamon writes the same to the Nomocanon of Photius, tit. 1, cap. 25.

(4) Decoration... (5) Sacrifices prohibited. From this it is clear in l. 5. c. eod. that the term is retained, which is neither in Basil. lib. 1, t. I, c. 13, nor in the old codex of Brod. As to works, they are decorations. V. Firmic. de error. profan. rel.

(5) For their destruction. This is correctly read in l. 5. c. eod. as: "Those who attempt to destroy them." Basilica, *katalyō*, which is, to ruin, to destroy.

(6) Public spectacles. Pleasures, 1. 4. c. eod. Games. See what we have said at 1. c. Cod. Th. Trebellius Pollio in *Gallieni*: "And what pleasures have been prepared, and what the stage will be tomorrow, what the circensian games."

(7) To the hilarity of the people. In the said 1. 4, not *licentiam* (license), as in some manuscripts, in which it is also to be read as *exhiberi, et iniri etiam* (to be exhibited and even entered upon), from the old texts. Concerning festive banquets, see what I have said at 1. c. Cod. Th. But what is said in the *d.*, *interpreted*, "If at any time the hilarity of public vows demands that these things be done." *Bord* in Greek. It is a barbaric expression which exists in the canon of the council in Trullo.

(8) Sacred places. He designated l. c. eod., that is, places designated for the sacred rites of the gentiles.

(9) To the Imperial house. Our texts want to associate. Thus the old texts and Basil: *hē idikē hēmōn ousia* (our private property), "We do not wish our private property to be associated." In the Cod. Theod. 1. eod., from which the *d.* 1. is taken, and in the codex of Brod, it reads: "We command," which is not to be changed. Prosper Aquitan. *De promiss. Dei*, part III.

(10) Or to churches. We wish it to pertain, as in Basil: *hēdōnēthēmen* (we were pleased), and in *xazontas* (those quiet), Basil. v. Cassiod. Chron.

(12) Twofold restoration. Tribonian changed it, as if the theft had been committed against Jews or Greeks, the penalty should be only twofold, but threefold or quadrupled if against others.

(13-14) Decurions. *Politeuomenoi*. Basilica, those who govern the cities. Principal men of the cities. Lib. 1, tit. 1, c. 16. Gloss *Gr.-Lat*. *Prōteuōntes*, principals. The principals are the first of the decurions, about whom Cujacius at tit. c. *De decurion*. 1. 35.

(15) By the people. *Para tou dēmou*: by the people, to be admitted, to be perpetrated.

^A VII. Let no one for the sake of a vow enter an idolatrous temple, nor honor the idols, nor adorn the temples with garlands, nor cast fire onto the altars, nor burn incense, nor offer libations, nor sacrifice. For he is punished by the confiscation of his property and with capital punishment, since the accusation of this crime is public. But the magistrate who, after a lawful accusation and proof, does not prosecute, shall pay fifty pounds to the treasury, and the staff of the office shall pay the same amount.

VIII. If pagans do something forbidden, they are publicly accused; and if they commit transgressions in another’s place, with the owner’s knowledge, both the place itself and the rest of his patrimony are confiscated, and he is deprived of his rank or military status. But if he is a private individual, he is punished corporally and is perpetually relegated to work in the mines.

IX. If anything be donated, or bequeathed to places or persons, or for the support of pagan error, the city in which those persons reside, or under which those places are situated, shall receive it, and it shall be expended in the manner of municipal revenues. But the magistrates themselves punish the impieties of the pagans, and refer to the emperor those which exceed their authority.

X. Those who, after holy baptism, remain in the error of the pagans, are punished with the ultimate penalty: but those who have not yet been baptized, let them bring themselves, and their children, and their wives, and all that they have to the holy churches. And their children, being minors, are to be baptized without delay; but the adults must first be instructed in the Scriptures and the canons. ^{B C D}

^A If, however, because they have attained to military service or dignity, or because they have wealth, they are baptized only in appearance, but leave their children, their wives, or those in their houses and their own dependents in their error, they are punished by the confiscation of their property and are duly penalized, and they do not share in the benefits of the state. But if they are not baptized, they share in no benefit of the state, nor do they possess ownership of property, movable or immovable; rather, the public treasury claims it, and they are appropriately punished and exiled. If they are found sacrificing or practicing idolatry, they are to be punished like Manichaeans. Pagans may not be professors of any discipline, nor do they enjoy public maintenance, nor according to divine ordinance. This title has no paratitla.

TITLE XII. On those who flee to the churches, and who use appeals there.

Interpretation I. Let not a Jew who, in order to flee a crime or debt, wishes to become a Christian, be received until he has appeared free of charges and has paid the debt.

II. He who drags away those fleeing to the churches is held for the crime of treason. ^B

III. Those who take refuge must not have any weapons, nor eat or sleep inside the temple; for they live safely within the first gates, in the courtyards, the porticoes, the baths, and the gardens. But if, having been admonished by the clerics and having taken an oath for the sake of ^C safety, they do not lay down their weapons, because ^D

they are being dragged away by armed men. But it is not permitted to do this without the order of the bishops and the defenders.

IV. If a servant ^A armed has taken refuge in a temple, let him be handed over to his master, or to him from whom he fled. But if, trusting in his weapons, he resists, it is permitted to the master to drag him away with as much force as he believes is required; and if he is killed while resisting, the master is guiltless.

V. It is not permitted to engage in shouting in the churches, or to cause a tumult, or to incite sedition in the city with a multitude. For let the one who is wronged, instead of doing these things, approach the magistrates. Whoever acts against this law, or incites sedition, is punished with the ultimate penalty.

VI. Whoever attempts to drag away those who have taken refuge is subjected to capital punishment. ^B Nor are they to be deprived of food, or clothing, or quiet. And if they are visible in the church itself, with reverence for the places being preserved, they are to be summoned by the sentence of the competent judge, and they shall give the answer that seems necessary for them to give. But if they are hiding within the church boundaries, they are to be sought through the steward, or the defender, or him to whom the matter has been entrusted by the bishop; and when they are found, they are to be admonished decorously; and they have the power to respond in the competent court, either through themselves or through instructed procurators. If they interpose delay, they are lawfully summoned by edicts; and if they have immovable properties, either their transfer or their sale occurs, according to the amount of the debt, both private and public. ^C But if they have movable properties hidden outside the church, they are to be sought through executors, and from them satisfaction is made. But if their properties are hidden in the church itself, they are to be sought through the steward and the defender. But if there is only a suspicion about someone, by the order of the bishop he gives an oath. The same is also observed in the case of guarantors, ^D and mandators, and their properties, and households, and associates, and altogether of those who for the same reasons are liable, and take refuge in the churches together with them: so that, to be sure, debts may be paid from their properties. But if they are servants, or *ascriptitii*, or *coloni*, or freedmen, with their properties or

without them, they are to be surrendered immediately, and they are to be chastised according to the nature of the offense and the measure of ecclesiastical discipline, so that those to whom they belong may not suffer loss from their absence, nor may they themselves be fed by the expense provided for the poor to the detriment of the church. The steward and the advocate must inquire into those who take refuge in the churches and the causes for them, and inform the magistrates or those to whom they pertain, so that things may be done in accordance with justice. This constitution does not have force in Constantinople, for the emperor disposes of matters that occur within that city according to his own judgment.

VII. ^B Anyone who has a suit or business against another must not disturb the churches himself or through another, but should approach the magistrates. But if, on account of certain transgressions, he needs the emperor, let him inform him through the archbishop. Anyone who does otherwise shall be chastised.

VIII. Anyone who, when the emperor is proceeding to the Great Church on a feast day, uses acclamations, loses his case and, being driven out by the prefect of the city, is chastised. But whoever flees to the church on account of some powerful person is to inform the imperial majesty through the works of the patriarch and the ecclesiastics (defensors).

And concerning the *paratitla*: Book 1, tit. 3, constitution 22, the beginning of which is: *Si qua*. The privileges granted to those fleeing to the churches are to remain firm. Book 1, tit. 49, constitution 1, the beginning of which is: *Nemo*. A magistrate, after he has succeeded to his post, must spend fifty days in the province in such a way as not to hide within the sacred precincts. Book 10, tit. 19, constitution 10, the beginning of which is: *Θεσπίζομεν* (*Decernimus*). This constitution discourses concerning *taxeotae* ^C or curials who flee to the churches, as to how public taxes must be exacted from them, ordering that no one is to pay levies on their behalf unless this has been publicly announced. For it does not wish for any payment to be made by the tax contributors for those who flee to the churches or are in other ways hiding themselves.

TITULUS XIII. Concerning those who are manumitted in the churches.

^A the Catholic Church, in the presence of the people and the priests, and for the sake of a record, a document of whatever kind is made, which is signed by the bishops. The bishops themselves also grant or leave behind freedoms as they wish, provided, however, that their intent be made manifest.

II. He who is manumitted in church in the presence of the bishop and the entire people becomes a Roman citizen. A cleric, moreover, if he has granted freedom either in a last will or by whatever words he has commanded it to be given, causes the direct freedom to accrue from the very day the testament is published.

Paratitla of titles. Lib. I, tit. 3, constit. 54, whose beginning is: *Deo nobis*. A slave who serves a pagan, or a Jew, or a Samaritan, or a heretic, even if he is not yet a Christian, but now wishes ^B to become one, as soon as he has received the seal (namely, of baptism), is snatched into freedom; nor can his master reduce him to slavery, even if he himself has later become a Christian.

Lib. VII, tit. 15, constit. 1, whose beginning is: *Sancimus*. In the second chapter, this constitution hands down that a son can, by the mandate of his father, manumit his own servants in church.

BOOK TWO

COLLECTIO

Concerning sacred things and places, and of those things which are done in them, and what is committed in them. Digestorum lib. I, tit. 8, first digest of Gaius. The sacred...

^A things are of divine right, and are subject to no one. A sacred thing is that which has been consecrated publicly. For private things are not sacred, but profane; but if the building should fall, the place remains sacred, as Marcian reports in the sixth digest. Sacred things are consecrated both in the city and in the fields. A public place does not become sacred without the order of the emperor, as Marcian and Ulpian report in the eighth and ninth digests. And a sacred thing is inestimable, as Pomponius says in the tenth digest.

Book I, Title 16, Digest 7. The proconsul shall inspect sacred places, and see that they are kept in good repair.

Title 18, Digest 15. The governor shall seek out those guilty of sacrilege.

Book II, Title 14, Digest 60. Pomponius. No one may rightly make a pact not to dedicate his own land.

Book VI, Title 1, Digest 23. Paul. We cannot claim as our own property that which is sacred.

Book VIII, Title 1, Digest 14. Paul. When a sacred place is interposed, even a right of way is hindered. For a servitude does not consist through such a place.

Book X, Title 2, Digest 4. Ulpian. The documents of a testament, with their distinction as explained in the text, are deposited in a temple ^B either by decree or by the consent of the heirs.

Book XI, Title 4, Digest 1. Ulpian. Fugitive slaves who are apprehended must be securely guarded, and their names inscribed in a temple, and whose they say they are, and their marks, in case they have scars.

Book XI, Title 7, Digest 36. Pomponius. Sacred places, when they come into the power of enemies, cease to be such, just as a free man reduced to slavery. But when liberated from this calamity, they recover their former status through the right of postliminy.

Book XII, Digest 5, Ulpian. Every lawful oath that is taken when presented must be kept; even if someone has sworn ^C by his own superstition.

Digest 33, Ulpian. He who has sworn by his own salvation seems indeed to swear by God, but if ^D...

it is not brought forward in this way, let him swear anew. But the whole of this title deals with oaths.

Book XVI, Title 3, Digest 1, Ulpian: If certain persons contend regarding the inheritance of a deceased person, ^A and none of them gives security to the one who holds a deposit from them, the depositary is not compelled to be vexed, but he deposits the thing in a temple, until the matters concerning the inheritance are judged.

Digest 6, Paul: That which is deposited, through a mediator, for a reasonable cause, by the judgment of the judge, is deposited in a temple.

Book XVII, Title 2, Digest 63, Pomponius: If a common thing has been consecrated, the society contracted on its account is dissolved.

Book XVIII, Title 1, Digest 5, Paul: The purchase of a sacred thing stands, if the buyer is ignorant that it is a sacred thing. But if he knows, it does not stand, as Pomponius says.

Digest 6: He who through ignorance buys a sacred thing as if it were private, although the sale does not stand, nevertheless has an action from the purchase against the seller, so that he may obtain what it was in his interest to have, so that he might not be deceived. So says Modestinus in Digest 62.

In the same title, Digest 22, Ulpian: It is not superfluous ^B to agree in this way: If any part is sacred, that nothing of it has been sold. For this pertains to small places; for if it is discovered to be entirely sacred, the sale is not valid, and the buyer even recovers what was paid. Moreover, sacred places are not counted into the measure of a sold piece of land adjoining it, unless this was expressly agreed, as Paul says in Digest 51.

Digest 73, Papinian: Even if a sacred place is in ruins, it does not become profane, nor is it sold.

Book XXI, Title 4, Digest 17: It is permitted for slaves to fly to places of asylum, and to ask that they be sold.

Book XXIV, Title 1, Digest 5, Ulpian: I rightly give ^C as a gift [...]

to my wife a thing, so that she may offer it to God, or a place so that she may build a temple on it. And that place becomes sacred.

Book XXIV, Title 1, Digest 61, Gaius: It is correctly distinguished regarding a spouse. For often, because of the priesthood, it is advantageous for a marriage to be dissolved for good cause.

Book XXVII, Title 10, Digest 12, Marcianus: The curator of a madman cannot dedicate the property of the madman.

Book XXX, Digest 39: He who bequeaths sacred things seems to be mad, and neither is their price given, because they are not sold at all.

Book XXXI, Digest 78, Theme 27, Papianus: If by letter I have given an estate to my son, without using the words of a fideicommissum in it, and I have deposited that letter in a sacred place, and I have written to the priest as follows: "I wish the instrument of my will to be given to my son after my death," and I die without a testament, with many heirs existing, the boy receives the estates that are mentioned in the letter.

Book XXXIII, Title 1, Digest 26, Scaevola: If I bequeath to the temple-wardens ten solidi to be given at the time of the festival of that temple, I am deemed to leave the ten solidi as an annual gift in perpetuity.

Book XXXIII, Title 1, Digest 17, Scaevola: If, having assigned my slaves to the guardianship of a temple being built by me, I bequeath to them monthly food rations and annual clothing, they receive them from the time of my death until the temple is completed. But the slaves—whom the testator consecrated to the guardianship of the temple built by him—remain the property of the heir, unless he has manumitted them, as Papianus states in Book XI, Title 12, Digest 55.

Book XXXIV, Title 2, Digest 37, Scaevola: If I say in my testament that a cross of one hundred pounds ought to be made and placed in such and such a sacred place, and if all the crosses in that same temple are of silver, the heir is compelled to have the cross made of silver.

Book XXXV, Title 2, Digest 1, Paulus: Regarding things that are bequeathed to God, there is also a place for the Falcidian law.

Book XXXIX, Title 2, Digest 1, Ulpianus: A declaration of new work has a place, lest anything be done against the law in a sacred place.

^A Book XXXIX, Title 3, Digest 1, Ulpianus: There is a place for the action regarding rainwater to be warded off against him who diverted water and harmed another's field, even if the water originates in a sacred place. Digest 17, Paulus: When a sacred place intervenes, a servitude does not consist. Book XL, Title 7, Digest 4, Paulus: If an heir is absent for the sake of the republic, either the *statuliber* waits for him, or the money [rightfully] sealed is deposited in the temple, and he becomes free immediately. Book XLI, Title 2, Digest 30, Paulus: We cease to possess a place that becomes sacred, even if we hold it not as such, but as a private place. Title 3, Digest 9, Gaius: Sacred things do not admit of usucapion. Book XLIII, Title 1, Digest 4, Ulpianus: Interdicts also apply to sacred matters. For instance, that nothing be done next to a sacred place, or that what has been done be restored, just as Paulus says in Digest 2. Title 5, Digest 3: A temple warden is also summoned by an interdict concerning the exhibition of documents, who received the documents of a will for safekeeping. Digest 5, Jabolenus: If a controversy regarding an inheritance arises from the documents of the will itself, or if it pertains to a public inquiry, the interdict concerning the exhibition of documents does not apply to me, but in the meantime, they are deposited in a temple. ^B Title 6, Digest 1, Ulpianus: It is not permitted to do or introduce anything into a sacred place which brings to it deformity and not decoration. However, this interdict does not pertain to private shrines. But the guardianship of temples is entrusted to those who are set over the sacred buildings. Title 8, Digest 2, Ulpianus: It is not permitted to build next to a sacred place, but even that which has been built is pulled down. Book XLIV, Title 6, Digest 3, Gaius: It is not permitted to dedicate a litigious thing to God. And he who has done this pays the double to his adversary for this reason, because it was handed over to a more powerful adversary than he himself would have been. Title 7, Digest 1, Gaius: Anyone who stipulates concerning a religious place does so uselessly. Book XLV, Title 1, Digest 26, Ulpianus: Anyone who promises that he will commit sacrilege does so uselessly: nor does an action arise from it. Digest 38, Ulpianus: I rightly stipulate that a temple be built: and a contract of hiring for the sake of such work is valid.

Annibalis Fabroti notes

^A

Digest 83, Paulus: It is impossible for anyone to stipulate for a sacred thing, although it can become private. For even if I had stipulated for a private place, and it happened that, without fraud on my part, it was dedicated; and furthermore, if it happened by some law that the place became private again: indeed, I am not held liable.

The same digest: I cannot stipulate for a sacred place under this condition: "When it shall have become private." For we can only stipulate for those things which, at the time of the stipulation, can be in our use and ownership. ^B

Digest 91 (87), Paulus: If the thing which is the subject of the stipulation is indeed in the nature of things, but cannot be given, for example because it has been made sacred: if it was the stipulator's at the time of the stipulation or later, and thus it was made sacred, he is held liable, just as when it was made sacred by another after he himself sold it. But if, while the thing is another's, it happens that it is made sacred by another, the person who made the stipulation is not held liable, unless the thing was made sacred after he himself had caused delay in making payment. ^C

Digest 137, Venuleius: I stipulate invalidly under a condition which is prohibited by law. For example: "You shall give, if anyone sells a sacred thing": although it may be possible that its legal status is changed later.

Book 47, title 22, digest 2, Ulpianus (89): Those who have occupied a sacred place with arms are subject to punishment. For proceedings are taken against them under the Law on Majestas [Treason], just as Ulpianus says in book 48, title 4, digest 1: The Law on Majestas (90) is similar to the law on the crime of sacrilege.

Book 48, title 13, digest 1, Ulpianus: Under the law on peculatus [embezzlement of public funds], proceedings are taken against him who has taken from sacred funds, or has diverted them to his own use, or has through evil intent caused that anything of this kind should happen.

Digest 4, Marcianus: Sacrilegious persons are punished according to the nature of the crime.

Digest 5, Marcianus (91): To steal private monies from a sacred temple is not sacrilege, and the place is subject to an action for theft. But in digest 16, title of the same 48th book, it is said that the location distinguishes the thief from the sacrilegious person.

Annibalis Fabroti notes ^D (84) *Dig. 83. Stipulatus fuero.* I shall promise. (85) *Absque dolo meo.* From the act of 1. 83, § Sacrum, D. De verb. obligat. Thus in "If a thing is bequeathed," inst. De leg., which Justinian says: *sine facto*, Theophilus interprets it as *absque dolo* [without fraud]. (86) *Quæcunque tempore*... A double reason is brought forward in the said law 83, because a stipulation of this kind cannot receive an obligation of the present time, for we only rightly stipulate for those things which can immediately be subjected to our uses and dominion. Of which kind are not sacred things. Nor will the stipulation be validated if the sacred thing should begin to be profane: for the stipulation ought to be estimated according to the law of the present time. *Cum quis*, in the same. This second reason is, because only those things which are possible by their nature are brought into the obligation. But this condition seems impossible in a free man and a sacred thing. (87) *Digest 91. Cum res alterius.* If anyone has promised another's thing. (88) *Qui stipulatus est.* He is not held, because he did nothing: unless meanwhile, while he delays payment, the thing has been made sacred. (89) *Lib. 48, tit. 22.* Jurisconsult in 1. 2, D. De colleg. Whoever has taken over an illicit college is held to that penalty by which those are held who have been adjudged to have occupied public places or temples with armed men. *Bas.* He who creates an illegitimate college. "Usurpare" is taken here in a bad sense. See Rittershusius ad Salvian, p. 54. (90) *Lex de crim. majest.* See the Greeks on 1. 1, D. ad leg. Jul. Maj. Book 50 of the Basilika, tit. 56. (91) *Digest 5, Marcianus.* Regarding which there was no agreement among the rhetoricians. It is, of course, an atrocious crime to open sacred places, and to carry off by theft what is in them, even if they are not sacred: for neither do the deposits of private individuals enjoy security in them: or, as Sopater and Marcellinus say on Hermogenes: It is a terrible thing to reopen sacred things, and to steal those things which are in them, even if they should not happen to be sacred. For the deposits of private citizens do not have safety, page 217.

^A Digestum 6, Ulpian: The punishment for sacrilege is meted out as more severe or more lenient according to the quality of the persons, the crime, the time, the age, and the nature of the act. For some are given to wild beasts, some are hung upon a gibbet. But the moderated punishment is for the nocturnal sacrilegist to be handed over to wild beasts: but for the daytime one, who commits some minor sacrilege, to be condemned to the mines, or if he be of a more honored rank, to be deported and sent away into perpetual exile.

Digestum 7, Venuleius: The crime of peculation is not actionable after five years from the time it was committed.

Digestum 9, Paul: Sacrilegists are punished capitally. Now, sacrilegists are those who plunder public temples. But those who plunder private sacred objects or small, unguarded temples are punished less than sacrilegists, ^B but more than common thieves. A foreigner who steals sacred things is held by the law concerning peculation. For he to whom their custody has been entrusted, even if he carries something off from them, is not held by this law.

Digestum 10, Marcian: One is deported who has put a man into a chest and deposited him in a temple, if that man, upon emerging from the chest, steals something from the temple.

Digestum 14, Papianus: The action for peculation also lies against heirs. For inquiry is made in that matter concerning the stolen funds.

Book 50, title 12, digest 2, Ulpian: If anyone vows a thing, he himself is obligated, not the thing. But when the thing is paid, ^C the thing itself does not become sacred, but the one who promised is freed. Concerning such a vow, persons of free status of adolescent age are bound, but not those who are under the power of others, without the consent of their fathers or masters.

Annibal Fabrot’s Notes

^A against the will of the fathers and masters. But if one should tithe a tenth part of his own goods, until he separates it, it does not cease to be his patrimony. But if he dies before he has made the separation, his heirs are held liable. For the obligation of the tithe passes to the heirs.

Tit. 16, Dig. 17, Ulpian. Sacred things are not referred to as public. It is taught, however, in that text what things are public.

From the first Institution, title first. Jurisprudence is the knowledge of divine and human things.

Book 2, tit. 1. Sacred things are those which have been properly and through a priest consecrated to God; such as temples and sacred vessels, which are neither sold nor mortgaged, except for the purpose of the redemption of captives. And if a temple has fallen, the place itself remains sacred. And that is not sacred which someone makes as if sacred by his own authority.

Title of the same. He who by chance finds treasure in a sacred place becomes the owner of it.

Title 6. Sacred things are not acquired by prescription.

Institution 3, title 19. If anyone stipulates for sacred things, it is of no moment.

Title 23. No one knowingly buys a sacred thing. But if he was deceived and bought it as private, he moves the *ex empto* [action] for what concerns him.

Title 26. It is not valid if I command you to commit sacrilege (95). For although you may have received some damage from it, you have no suit against me.

Title 57. There is a case where that which is paid by mistake, not being due, is not recovered: as in the case of those things which are bequeathed to venerable houses, out of regard for religion or piety.

Institution 4, tit. 6. If he who is ordered to pay a legacy or trust to venerable places has placed a delay, and has been summoned to court, he pays double what was left.

Title 15. A prohibitory interdict also applies then, so that no one may build in a sacred place.

Title 16. That which is bequeathed to venerable places, by denial becomes double.

Title 18. The law concerning peculation applies against sacrilegious persons.

^{B C D}

Concerning Priests.

Book 6, tit. 4, Dig. 2, Ulpian. It is not permitted to summon a priest to court while he performs his priestly office, nor those who, on account of the religion of the place, cannot depart from it.

Notes of Annibal Fabrot.

-*.» ^A

Lib. III, tit. 3, Digest 18, Modestinus. There is a just cause why even after the litis contestatio a procurator may be replaced, namely, because he has become a priest.

Lib. IV, tit. 8, Digest 32, Paulus. If a man who has become a priest ^B is a compromissary judge, he is not compelled to deliver a sentence. But concerning those for whom, after the deposit of the priesthood, he has become a compromissary judge, he is compelled to deliver a sentence.

Lib. V, tit. 3, Digest 50, Papianus. If a testator orders a monument to be made for himself, by strict law no action lies against the heirs to do this; however, through the emperor and the priests they are compelled to render service to the deceased.

Lib. XI, tit. 7, Digest 7, Gaius. If a prince or a priest does not permit me to remove a body or bones buried in a place that belongs to me, I am held by an action for insult (*injuriarum*). ^C

Tit. 8, Digest 5, Ulpianus. Sepulchers are repaired with the intervention of the priests’ authority.

Lib. XXIV, tit. 1, Digest 61, Hermogenianus. A man who has been divorced can become a priest.

Lib. XXXI, Digest 78, theme 27, Papianus. If I have donated estates to my son by letter, not using the words of a trust, and I have deposited that letter in a sacred place, and have written to the priest as follows: "This instrument is of my will; after my death I wish it to be given to my son"; and I subsequently die intestate, with many heirs existing: the son receives the estates which are mentioned in the letter. ^D

Lib. XXXIII, tit. 1, Digest 26, Scaevola. If I have bequeathed money to the hierophylactes [that is, sacristans] to be given at the time of their feast to the priest himself; I am considered to be leaving the ten *solidi* annually to the temple in perpetuity.

Lib. XLIII, tit. 5, Digest 3, Ulpianus. A sacristan who has taken custody of testamentary tablets is sued by an interdict for the production of tablets.

Tit. 6, Digest 1, Ulpianus. The custody of temples is entrusted to those who are set over sacred buildings.

Annibal Fabrot’s Notes

*Mansionarius* is thought to be named from *manendo* [staying], because he used to remain at church to perform his duty. On this, see St. Gregory, *Dialogues*, lib. I, cap. 5. Regarding those enclosed or recluses, see our Glossary to Cedrenus under the entry *Enkleistoi*. See the Scholiast of the Synopsis of the Basilika, lib. VI, tit. 8, at 1. 2: "What are the places in which those who are called *stelite* or *columnarii* enclose themselves?" Theodore the Studite, *Catechesis* xxxvi, *Suilita* in the beginning, etc. Therefore, they are not to be heard who read in the said [place]. From there they cannot be removed.

(1) Lib. V, tit. 3, *by strict law*; for this mandate produces no obligation, l. Quintus Mutius 7, D. *De ann. legat.*

(2) *If priests*. The Scholiast of the Basilika, lib. XLIII, tit. 1, c. 50, p. 639, through a bishop, from l. C. *De episc. et cleric.*

(3) Lib. XXIV, tit. 1, dig. 61. *Divorce*. Better in the Peiresc Book, *bona gratia*. *Bona gratia* separated. See leg. 65, D. *De divor.*

^B Book 50, title 5, digest 13, Ulpian. He who is absolutely unable to perform the duty of a judge is excused, just as one who has become a priest. Institution 1, title 20. In the provinces, bishops, along with the defenders, grant tutors where the estate does not exceed five hundred gold pieces.

Concerning the Jews

Book 48, title 8, digest 11, Modestinus. Jews are permitted to circumcise their own children. But if they circumcise another, they are punished as those who castrate are punished.

Book 50, title 2, digest 3, Ulpian. Jews are compelled by necessity to hold honors which do not injure their religion.

Concerning sacrifices, and astrologers, and diviners, and poisoners, and those who turn others toward forbidden religions

Digest 9, Ulpian. If I have given poison to a female slave instead of medicine, and she, having taken it, dies, there is a place for an action on the fact; but if the midwife has applied the poison with her own hands, the Aquilian law is appropriate, just as when someone smears poison on a person, or puts it in by mouth or by clyster, by force or by persuasion.

Book 10, title 2, digest 4, Ulpian. ^C They are not divided ^D

^A between heirs if they are found in the inheritance, either noxious drugs, or magical books, or the like; but they are destroyed by the judge's office. Book 6, title 1, Digest 35, Gaius. Noxious drugs are not sold. If, however, they are useful when mixed, as in antidotes, they are traded.

Concerning the homicide

Book 48, title 8, digest 2, Ulpian. A person is held under the law against assassins who makes, sells, or possesses poison for the purpose of killing a man. Furthermore, there are drugs which produce health, and so-called love potions. But if someone, not with evil intent, gives a woman a medicine for conception, and she dies after taking it, he is exiled; and the druggist who ^B rashly gives someone hemlock, or salamander, or aconite, or pityocampen, or buprestis, or mandrake, or cantharides, is punished, according to the digest of the same title.

Notes of Annibal Fabrot

^C ...to be destroyed immediately, because no one should be harmed by them. ...before the purification. ...most drugs are indeed good when mixed... memory 2... to be also love potions, which those skilled in the matter, when they want, use, and are loved by them. [I] conceive, regarding a woman... are, those who are appointed for the gathering of herbs; hemlock, a drug. In the Bucolics, and [book] 2 of the Georgics.

(12) Lib. 10, tit. 2. They are not divided. Balsamon and the Nomocanon. Photius, tit. 9, c. 25, writes that in the Digest it is indeed written that they are not divided, but that it is more correct that they be divided in the Basilics; for these things were in domain, but are burned by the office of the judge, so that no one is harmed: let the judge immediately destroy such things. The same also, tit. 12, c. 3, writes that the law *D. fam. erc.* is referred to by Photius as it was before the repeated reading of the Basilics. And so Balsamon here has followed the Digest.

(13) They are destroyed. Destroyed. They ought to be destroyed, 1. 4, § 1, D. Famil. erc., a place where a certain Spaniard reads that they are to be burned, but he is refuted by the Greeks. Balsamon, d. c. 25: It is the office of the judge to destroy such things immediately, from lib. Basil. 42, tit. 3, cap. 4, although according to the meaning of the law, to be destroyed is to be burned. And so the same Balsamon writes, to be burned. Add Paulus, book 5, Sentent. tit. 24.

(14) Noxious drugs. Poison is said in both ways; for medicines are also poisons, as Gaius says in l. De verb. sign.; St. Augustine, De civit. Dei, lib. 17, cap. 18; Servius on that Georgic line: *He brought forth evil venom*: Well, he says, he added an epithet for distinction; for venom is both good and evil, just as poison is; for it is the same. But it comes from the Greek; for they have ^D *pharmakon* as middle, that is, good and evil. See the Etymologicum Magnum in v. *pharmakon*. Whence by the addition of the other [word] a distinction is made, as in l. 9. § D. Ad leg. Aq. d. l. 35; leg. Cornel. de sicar.; and in the law which Cicero interprets in the Cluentiana: *Whoever made or administered evil poison.* Solinus, cap. 44: *He expelled his life with a cup of evil poison.* Commonly, however, by the name of poison we understand more that which is given for the cause of death. Glosses, *thanasimon pharmakon*: Mortiferous medicine. See Quintilian, declam. 246: Medicine is also an ambiguous word. And so they call them "bad medicines" in l. 4, § D. Famil. erc.; jud. It seems, however, to have prevailed that those things be called medicines which help, not which harm, l. Nonius Marcellus on "medicine": he asks there of Hannibal why he drank medicine, that is, poison.

(15) Lib. 10, tit. 2. They are not sold. The sale of poison is not contracted, the sale is null.

(16) As in antidotes. Antidote is read in Flor. in l. 55, § 2 D. De contr. emt., and c. 16, as in Greek *antidotos*, or antidote, against poison, is made from many things, as the Mithridatic antidote which Pliny writes is composed from things, lib. 29, c. 1; although poisons may be mixed, yet it is a healthy medicine, and poison is dissolved by poison. The purchase of an antidote is therefore contracted, and of other things which, mixed with other materials, lay aside the nature of harming. Regarding these, the verse of Homer is to be understood, related in d. l. 256: *Many drugs indeed good when mixed*.

(17) Lib. 48, etc. Certain drugs. They are not evil poisons.

(18) Has. Theophrastus in Historia plant.

(19) Amatoria. Galen, lib. 11, De simplic. med. fac. not long after the beginning. Xenophon, Memorabilia 2, to be also love potions which those who are knowledgeable use toward those they want, and are loved by them. Cicero, pro Cluentio; Epiphan. lib. 1, t. III: synodus Realicin. c. 25: Demons are the authors of love potions. See Porphyry, p. 203, and Theodoret, De Graec. pass. 1, p. 47. Regarding the punishment of those who give a love potion, see l. 38, § D. De poen. and our dissertation 6. See also the canons given under Edgar, king of the English, can. 41, p. 464 of the Councils of England.

(20) For conception. I conceive. Glosses: I conceive, in a woman.

(21) Pigmentarius. Scribonius Largus, c. 22: Pigmentarii are retailers. Scholiast of the Basilics, lib. 59, tit. 59, c. 3, § 3. *Pigmentarioi* (so it is written and in the Glosses of the law) are those who are appointed for the gathering of herbs.

(22) Cicutam. Cicuta, [hemlock], drug. The Glossographer errs, or which is more true, the copyist: and it is entirely to be read so: Ciruta, Cicuta... (ecl. and 5), [agricultural].

(23) Salamandram, Pityocampen. Galen, lib. 11, De simplic. med. fac. near the end.

(24) Bubrostim. *Boubrosten*. Basilica, *boubrostin*, and schol. p. ed. Gull. Morelli. Pliny and others, Buprestis. Scribonius Largus, c. 190: Buprestis causes a tumor, and infinite pain of the stomach, and inflates the whole body into the appearance of one dropsical.

(25) Mandragoram. Nicander mentions him in the Theriaca.

^A Of the same title, digest 13, Modestinus. He who performs or has prohibited sacrifices is subject to the law.

Title 49, digest 50, Modestinus. He who does something to subvert the simpler-minded in their religion towards the Divine is relegated.

Digest 38, Paulus. He who gives a potion for love or for abortion, even without malice, if he is of low condition, is condemned to the mines; but if he is of honorable rank, he is relegated with a partial confiscation of his property. And the extreme penalty is imposed if anyone dies as a result of this.

Book 47, title 10, digest 15, Ulpianus. He who makes someone senseless by a drug is held for injury.

Of the same digest. If an astrologer, or one practicing some other forbidden form of divination, when questioned, calls someone a thief who is not, he is not held for injury, but is liable to the penalties of the constitutions.

Concerning the support of children, the elderly, and the infirm

Book 30, digest 124, Paulus. It pertains to the honor of cities that a legacy be made for the support of the infirm, children, or the elderly.

Book 33, title 2, digest 33, Scaevola. Thus I said: I will that my freedmen who are elderly and infirm should have a gerocomium in the places where they now are. I seem to say that they should live in such a manner as they lived while I was alive. ^B

[alt-version omitted]

^{C D}

BOOK THREE. FROM THE NOVELLAE ISSUED AFTER THE CODE.

TITLE I.

1. Law on how bishops, presbyters, and deacons are to be ordained, both male and female. II. Concerning bishops and clerics. III. That when presidents delay in hearing those who approach them for justice, they are to be compelled by the bishops to do so, and what follows thereafter. IV. That clerics are to answer before bishops. V. Concerning the deposition of Anthimus, Severus, Peter, and Zoora. VI. That the sacred mystery of the sacraments is not to be performed in private homes. ^B VII. That no one is to build an oratory without the bishop's consent, and what follows thereafter. VIII. That the cities around Viminacium under the Romans are to be under a special archbishop, not under the one from Thessalonica. IX. That the number of clerics of the Great Church and the remaining churches is defined. X. That clerics are to be transferred from one church to another to fill the established number of those who are deficient. XI. Concerning what are called 'insinuativa' among clerics, and what follows thereafter. XII. Where certain clerics depart and substitute others in their place, and what follows thereafter. ^C XIII. Concerning monasteries and monks, and what follows thereafter. XIV. How monks ought to live. XV. A constitution regarding before whom monks or ascetics ought to litigate. XVI. This constitution interprets the prior constitution concerning those who enter monasteries, and what follows thereafter. XVII. Concerning the ordination of bishops and clerics: and concerning synods and the oblation.

^A

TITLE II. On Ecclesiastical matters and titles.

TITLE III. On heretics, and Jews, and Samaritans.

TITLE I. On bishops, and clerics, [monks], and monasteries.

Empire Justinian to Epiphanius, Archbishop of Constantinople. Greatest are the gifts which are granted to men by God. Whoever is to be ordained bishop must have the testimony of a good reputation, and must not be a councillor or an official. ^{C D}

^A If he is not from his earliest years a monk, let him be released from the curia, providing a fourth part of his own estate to the council chamber. But let not a layman be immediately advanced to the episcopate, nor let him cohabit with a concubine, nor have children, ^B or a wife living with him; but let his wife be a virgin, who has lived with him from her virginity. Let it not be done for money, so that he may not lose what he has given, and let her be confirmed to his church.

Notes of Annibal Fabrot

^B *Modesty (σεμνότης)*. Justinian, however, derived these things from the Epistle of Paul to Timothy, ch. 3, 2, and to Titus, ch. 1, 7. St. Jerome explains them thus against Jovinian.

Laymen are not promoted immediately. By civil law, positions of honor are held by degrees; and no one can hold a higher magistracy unless he has first undertaken a lesser one (Law: *Qua utiliter* 45, D. *De neg. gest.*; and Law: *Honor* 14, § *Gerendorum* 4, D. *De minor. et honor.*). Even in the Eleusinian mysteries, one first became a *mysta* before being instituted as an *epoptes*—that is, before he was admitted to the inspection of mysteries—and a year was interposed for the purpose of probation. Similarly, no one is promoted to the greater dignities of the Church unless he has first served in the lesser ones. Therefore, a layman is not chosen as bishop suddenly and with the middle steps neglected, but *κατὰ βαθμούς διεξελθών* ("advancing through the degrees"), as Simeon Metaphrastes writes of Dionysius the Areopagite (31 Oct., in the Menologion). This is also provided for by canon 10 of the Council of Sardica. St. Cyprian writes to Antonianus concerning Cornelius: "He did not arrive at the episcopate himself, but having been promoted through all the ecclesiastical offices, and having often merited well of the Lord in divine administrations, he ascended to the sublime height of the priesthood through all the degrees of religion." St. Jerome, in the *Epitaph of Nepotian*: "He becomes a cleric and, through the customary degrees, is ordained a presbyter." St. Gregory Nazianzen speaks elegantly in his first oration, "As a city." And he uses this in oration 20. The same, in the encomium of Athanasius: "*Καὶ πᾶσαν τὴν τῶν βαθμῶν ἀκολουθίαν διεξελθών, ἵνα τὰ ἐν μέσῳ* ^C *συντέμνω, τὴν τοῦ λαοῦ προεδρίαν πιστεύεται*—and having advanced through the entire order of the degrees, that I may cut short the things in between, he is entrusted with the presidency of the people." And having subsequently performed the duties of all the ecclesiastical degrees, that I may cut short the intermediate ones, he is set over the people. See Zosimus, epist. 9; St. Chrysostom, *On the Priesthood*; Fulbert, p. 47; Peter Chrysologus, p. 412; Anastasius, *On the Lives of the Fathers*; Council of Constantinople VIII under Adrian II, c. 8, vol. III of the Councils, p. 1, sect. 2, p. 673, coll. 2; Council of Barcelona, c. 3, vol. II of the Councils, p. 303, coll. 1, can. 10; Council of Sardica and Synod of Constantinople, c. 17; Pope Vigilius, epist. 4; Fulgentius Ferrand, in the *Brevatio Canonum*, § 2: "That any layman who is elected to the episcopate should first pass a year in ministry through all the degrees," from the Council of Suffetula.

Therefore, the abbot Godfrey objects to Gufridus, Bishop of Chartres, because he was elected bishop before taking the sacred orders (epist. 1, 27, lib. 3). The same is reproached against Raynald of Angers (epist. 2, lib. 3): "All the orders," he says, "but without order, because you received them in eight days and not at the fixed times, on account of ambition for the episcopate." Nor were the ancient canons of the Fathers observed more sincerely among the Greeks: George Acropolites; Manuel Arsenius, p. 423b. But indeed, they were not always so rigidly observed: for bishops were also taken from the deacons; Leo the Great, in his *Epistolae*.

Therefore, Nicholas I, in epistle 6, complains gravely that Photius, following the example of St. Ambrose and Nectarius (concerning whom see Sozomen VII, 8; Socrates IV), was made bishop from a layman, etc. And the supreme pontiff, according to Krantz (*Hist. Brem.*, lib. 7), says: "We have seen your elect; the person is pleasing, the knowledge is pleasing, the eloquence is pleasing; and the morals, as far as we know, are also pleasing. But the manner of his election is displeasing, especially because he was elected while below the sacred orders—I do not say the subdiaconate, but even the acolyte." Thus Demetrius wished to become a *mysta* and an *epoptes* at once, and it was noted as an unusual and new thing, as Plutarch writes in *Demetrius*, and Philo- ^D chorus in Harpocration. According to this novella, a bishop is not ordained from among monks or clerics unless he has remained among the clerics for six months. And from novella CXXIII, cap. 1, § *ult.*, a layman even, if elected to the episcopate, is ordained only three months after his co-optation into the clergy.

Sometimes, however, because of cause and dispensation by the supreme pontiff, one does not ascend gradually. The author of the *History of the Roman Pontiffs who sat in Gaul*, in [the life of] Clement VI: "However, such an ordination having been made, he became a religious and assumed the habit of the Preachers; indeed, the pope himself, at his insistence and through the procurement of John, King of France, having already made the aforementioned his successor, made him Patriarch of Alexandria, and the Church of Rheims was commended to him in perpetuity, and for the sake of honoring him the more, lest by chance he might be able to withdraw from the aforementioned in the future, he ordained him to all the sacred orders in one context on the very night of the Nativity of the Lord."

(40) As for a concubine, Balsamon, p. 961. Robert, a monk of the monastery of St. Marian at Auxerre in the *Chronicle of Auxerre*: "The cohabitation of wives and concubines is also strictly forbidden to presbyters, deacons, and subdeacons there (in the council called at Rheims)."

(41) Who had them at the beginning of the nascent Church could be called to the episcopate; yet he lived with his wife as though with a sister, by the example of the apostles, of whom Clement of Alexandria speaks in *Stromateis* III. Known are the verses of Venantius Fortunatus concerning Placidina, the wife of Leontius, Bishop of Bordeaux:

I strive even to mention a few things concerning the love of Placidina, Who was once your wife, but is now a dear sister.

Which was a mysterious brotherhood, as Paulinus speaks in epist. 2, to Victricius. And when the consortium of strange women was inhibited, that woman who had been a wife before the priesthood was excepted (Law: *Eum qui* 19, C. *de episc. et cler.*). Concerning those living in continence, see Epiphanius in the *Compendium of the Truth of the Church*. But finally, it pleased that no one should be created a bishop unless he were celibate and *orbus* (childless), novella CXXXVI, c. 2, which indeed was abrogated regarding children, and therefore was not recorded in the *Basilica* on account of the 11th novella of Leo, as Balsamon writes to canon 48 of the Sixth Synod.

(42) He who has a wife living with him cannot be made a bishop, but only one who has lived chastely with his wife, or at least one who had once taken a virgin as his wife. For it is certain that Peter, the prince of the apostles, had a wife. It is not agreed upon concerning Paul; for Clement of Alexandria states in *Stromateis* III that he had a wife, others think the contrary, [as does] Theodoret of Cyrus from the Epistle of Paul to the Corinthians.

(43) "Let her be a virgin wife." The text is slightly corrupted in the Greek, and has driven into a graver error. Thus, therefore, it must be restored: "But let his wife have been [a virgin] from her virginity, and not have been married to anyone before that." See the novella of Justinian, c. 1, § 3. Innocent, epist. 2, to Victricius of Rouen, cap. 4: "Let a cleric not marry a woman, because it is written: 'Let the priest take a virgin for a wife, not a widow, nor an ejected woman,' that is, one who has already known a man."

^A And let him not be ignorant of dogmas. Let him be chosen from among the monks, or one who has been enrolled in the clergy for no less than six months, professing to keep the holy canons. For he who is ordained or ordains contrary to these matters falls from the priesthood. ^B If a bishop or a cleric has received anything for an ordination, and restores what was given to the Church, he is also cast out of the priesthood. But if he who received it is a layman, he shall return double what he received to the Church, and he shall be subjected to perpetual exile, falling also from whatever office he may happen to hold, and the bishop who gave it shall not be able to claim for himself the priestly dignity which he had previously. ^C Let the one who ordains a bishop proclaim to the one about to be ordained, in the hearing of the whole people, that, having learned that he possesses and keeps all the aforementioned things, he may lay hands upon him. Let anyone who wishes accuse the one about to be ordained.

Notes of Annibal Fabrot

^A If it should be proved that he speaks the truth, the ordination shall be inhibited; but if he who is to be ordained appears free of blame, or if the accuser abandons the accusation, the ordination shall take place; yet the accuser himself shall be subjected to the penalty of perpetual excommunication. But if the examination of the accusation is neglected, both he who ordained and he who was ordained shall be deprived of the priesthood.

^B No bishop shall be absent from his own church for more than a year. But if he does this, and having been summoned canonically by his patriarch or metropolitan, he does not appear, he shall be removed from the episcopacy, and another shall be ordained.

No bishop shall be [absent] without the commendatory letters of his own archbishop or metropolitan, ^C or metropolitan; the metropolitan is prohibited from coming to the imperial court without the letters of the archbishop.

Notes of Annibal Fabrot

Commendatory letters are so called because they commend those who migrate to bishops other than their own. Paulinus of Nola, in epistle 21, to Bishop Amandus: "Marius, the bearer of this letter, is commended especially to your unanimity, that just as we requested of our holy bishop and father, so he may be ordained by you." Ebroinus of Bourges, in a *formata* to Archbishop Magnon of Sens: "We have sent these commendatory letters, made in the ecclesiastical manner, to your charity, that your God-worthy charity may know that he has not fallen by flight, nor has he been cast out by us due to his own malice, but is sent by our will."

These letters are also called *dimissoriae*. The Synod of Trullo calls them *apolutikē*; the Graeco-Latin glosses [translate] *apolutikē*, that is, *dimissoria*. For clerics who were to remain in another diocese were absolved and dismissed by their own bishop, as in the *formata* of Bishop Wolfeon of Constance to Bernalt of Argentina: "Receive, therefore, the one commended to your care, and as one absolved by our part, keep him in the number of your flock." They were also called *canonicae*, as in the *formata* of Hincmar of Reims to Aeneas of Paris, and in the *formata* of Bishop Ratbod of Trier to Bishop Robert of Metz. Finally, they were called *Formatae* throughout the councils, because the *typos*, or form, of the episcopal seal was impressed upon them. Pope Vigilius, in an epistle to the bishops of Gaul: "We command by equal authority that no one, without the *formata* of our aforesaid brother and co-bishop, the fraternal one, should dare to journey to distant places." And in the epistle to Aurelian, Bishop of Arles: "Let no one, without the *formata* of your fraternity, dare to journey to distant places; but [let them] observe that custom which it is certain our see has always held, and let them request a *formata* from you if, compelled by the necessity of their affairs, they plan to set out on long journeys." See the blessed Augustine, epist. 163, and the most learned Sirmond on Sidonius.

*Dimissoriae* properly pertain to those who were moving into another parish or diocese, so as to remain there perpetually, as in the aforementioned *formata* of Wolfeon and in the *formata* of Hediton to Rodulph of Laon. And in this way, a bishop acquires one commended by a *dimissoria*, as in epistle 138 of John VIII to the monk Vulgarius. *Commendatitiae*, however, pertain to those who were migrating temporarily; for instance, if they were about to go away for the sake of some private or public business, or were going to the *comitatus*, that is, where the prince lived, *à la Cour*.

Balsamon here translates "archbishop" as "patriarch," Nov. VI, c. 2 and 5, he translates "patriarch of the region." Julian. Nov. VI, num.

^A Constantinople. He who comes thus ^B must first proceed to the most holy Archbishop of Constantinople, or to the apocrisiarii of the diocese subject to him, so that the matter may be communicated to them; and if need be, through them, or through the referendaries of the Great Church, it should be signified to the Emperor.

A cleric who is to be ordained must be blameless and skilled in letters, and neither from the class of officials or councilors, unless according to the order previously established; nor one who has contracted a second marriage, or has lived with a concubine, or who has a wife not wedded to him as a virgin, is to be ordained...

Notes of Annibal Fabrot

^B ...that he is one in whom both the gravity of morals and skill in letters are present; and honesty renders him commendable. William of Malmesbury, book 1, on the deeds of the English pontiffs: And so skill in letters has always been so necessary for prelates that sheer ignorance could be a just cause for being deposed from a sacred magistracy. Anselm, in his epistle to Pope Urban, relates, however, that Albert Crantzius, in the *Ecclesiastical History of Bremen*, book 8, chapter 53, writes that Henry, from the counts of Anholt, was admitted to the archbishopric, even though he had barely touched upon the first letters. A monster of ignorance even elevated to the patriarchal seat is mentioned by Nicephorus Gregoras: "Nipho, the metropolitan of Cyzicus, succeeds to the patriarchal throne, the archbishops having yielded to the imperial will, and his having flown from Cyzicus to the elevation of the patriarchate. The man was entirely ignorant of secular learning, and not even familiar with divine learning, as he did not even know how to write the letters of the alphabet with his own hand." Nipho, metropolitan of Cyzicus, having yielded to the Emperor's will, is sent for for the patriarchate. Now that man was entirely unversed in Greek letters, and almost in sacred ones too, ^C as one who could not even trace the elements of letters with his own hand.

^C ...bishops ought to be irreproachable, as the Divine Apostle Paul prescribes in his Epistle to Timothy, chapter 3, verse 2. Because it is fitting that those whom it is necessary to correct others should be irreproachable, as it is in canon 2 of the Council of Auvergne: "For the ruler must be a light, so that all looking toward him may be enlightened and guided." For him who presides over others ought to be as a star to illuminate and direct all who look upon him, as Theophylact says in his commentary on the Epistle of the Divine Paul. And the life of clerics must be harmless and inculpable. And they must be of upright life and pure from wickedness. ^D However, this is to be understood in such a way that a bishop or cleric is not *anamemptos* and impeccable, but irreproachable insofar as the frailty of human nature allows. Saint Jerome, book 1, *Against the Pelagians*: "God certainly wishes bishops or presbyters to be such as the vessel of election teaches. First, because he said 'irreproachable,' such a one is either nonexistent or rare; for who is there who, as if in a beautiful body, does not have either a mole or a wart?"

...that he should not be an official or of curial condition, Julianus Antecessor.

...are kept from the priesthood. Saint Jerome, book 1, *Against Jovinian*: "How holy digamy is, is shown from this, that a digamist cannot be chosen into the clergy." Saint Augustine, *On the Good of Marriage*: "The sacrament of marriages has been so redacted to one husband and one wife that it is not permitted for a dispenser of the Church [a clergyman] to be ordained, unless he is the husband of one wife." Saint Epiphanius, heresy 59. Tertullian, in his book *On the Exhortation to Chastity*: "No other can be a presbyter than a layman who has been married once." Saint Leo, in epistle 87 to the bishops of Caesarean Mauretania: "By no means should one ascend to the grade of deacon, or to the honor of the presbyterate, or to the summit of the episcopate, if it has been proven that either he himself was not the husband of one wife, or his wife was not the wife of one husband." See the 93rd epistle of Jerome to Oceanus, and on the epistle to Titus, chapter 6. Theodoret on 1 Timothy, chapter 5; Saint Ambrose on chapter 5 of Paul's 1st Epistle to Timothy. Digamists are also kept from sacred orders due to the defect of the sacrament, chapter *Debitum*, extra, *de clerico conjugato*. Because those who divide their own flesh do not signify the unity of Christ with one and immaculate spouse, the Church. Canon *Acutius*, distinction 26.

^A and receives canonical injunctions to the hearing of all the people, similarly to those who come for ordination.

That no one who is illiterate should be enrolled into the clergy.

A presbyter, or deacon, or subdeacon who, after his ordination, lives in marriage, or brings in a concubine, either openly or in a disguised manner, falling from his priesthood, let him be a layman.

A reader contracting a second marriage, let him not advance to a degree of priesthood. But if he is eager to advance, let him be cast out of the clergy. A third marriage is forbidden to him.

She who is ordained a deaconess must be a virgin, or one who has previously lived with one and only one husband. ^B

Annibali Fabroti notes

(63) *To be ordained gratis.* See Ærodium, *Rerum Judicatarum*, p. 444 and Cassiodorus, 9, et seq. It is maintained that for the clergy, as Cyprian says, that should also be observed, that they be *aneuklētoi*, or blameless. Fulbertus, epist. 61. The sentence of the Apostle must be observed, who says that it is necessary not only for a bishop, but also for a presbyter and deacon, to be without crime.

(64) A presbyter, deacon, and subdeacon, if he contracts a marriage, falls from the clergy. Cap. 1 and 2, *ext. qui cler. vel. vovent. matrim. contrah. possunt*. Council of Aurelianum II, c. 8, because of the vow of continence: for as many deacons as subdeacons, when first they are enrolled in the clergy, pledge their flesh forever. Hugo a Sancto Victore, *de sacrament.* lib. 1, cap. 30: The Order prevents the contracting of marriage, and dissolves the contract, because the vow of continence is annexed to the sacred orders, so that although it may not be done in words, nonetheless, in the very reception [of orders] it is understood to be done. However, in canon 10 of the Council of Ancyra, it was permitted for deacons in the Eastern Church to contract marriages, if they had been ordained under that law by the bishop, so that it might be permitted to them to be joined in marriage—and they were not deposed if they later married a wife. But from canon 6 of the Council in Trullo, ^C presbyters, deacons, and subdeacons do not indeed contract marriages legally after ordination, but they use the marriage already contracted, except during the time of the administration of the sacred mysteries: according to the judgment of Zonaras upon the canon of the Council of Carthage. Novella 6, cap. 5, *idiōtēs estai kai laikos*, Julian the Antecessor, let him be a private person and a layman.

(67) A reader is not prohibited from contracting [second] marriages, can. of the Apostles, and the Greeks use that law, cap. *cum olim* 6, *extra de cler. conjugat.* But if he has contracted a second, he cannot be advanced to the honor of the priesthood.

(68) A deaconess was chosen as a woman of one husband, not remarried, a word which the Council of Epaonum uses, c. 2. Paul to Timothy 1, cap. 7. The discipline of the Church and the prescription of the Apostle does not grant that a widow be chosen into the order unless she be a woman of one husband; and *de virginibus veland.* cap. 9, to which Epiphanius refers, in the birth of the Church, they were chosen, who, it is understood, after one marriage was completed, thenceforth renounced the sex, as Tertullian speaks, *de exhort. castitatis* cap. 1. But Clemens is said to have instituted the order of ^D widows, as it is at the end of lib. 6 of the *Recognitiones*, as if it were for a minister so that a virgin might be referred to the census of widows, whom the consideration of a colder age persuaded to be admitted to the ministry of the Church, not younger; those who, while they were still vigorous, could seek their living by their labors: those also whom it behooves of adult age to tame the lasciviousness of youth with labors, as Theodoret writes upon that epistle of Paul to Timothy. In the course of time, however, virgins were also sought. Epiphanius in *haeres.* 79: *aeiparthenoi**, that is, ever-virgins. Which place recalls to my mind the epistle of St. Ignatius to the Smyrnaeans at the end, which learned men believe to be interpolated: *Aspazomai tous oikous tōn adelphōn mou syn gynaixi kai teknois, kai aeiparthenous kai chēras*. Old version: I greet the houses of my brethren with wives and children, and also the virgins and widows; and deservedly so: for in the Ignatian age virgins were not enrolled, but widows. Yet also in the genuine epistle, as it is believed, Ignatius mentions virgins as well in these words: *kai tas parthenous tas legomenas chēras*. Old version: *virgines vocatas viduas*. What he says about virgins does not savor of the Ignatian age, if you take it for deaconesses. The rest can be taken in this sense, so that the holy man greets those called widows—that is, not all, but those who had been enrolled in the order and placed in the widowhood, as Tertullian speaks, *de virginib. veland.* Therefore, unless the authority of ancient codices stood in the way, I would wish it read so in the said epistle, with the word [deaconesses] expunged. The ministry of deaconesses is contained in Novella 6, c. 6, and can. 12 of the Synod of Carthage IV, and Epiphanius signifies this at the said place if only *loutron* there is taken for baptism. Therefore, deaconesses were employed when women catechumens were bathed in the sacred laver. The same Epiphanius: Deaconesses are instituted for the ministry of women only for the sake of modesty, if there should be need for the sake of the bath, or the inspection of bodies. For beware of the ancient interpretation of that place (for the sake of the bath), the scholiast of Harmenopulus in the *Epitome of the Canons*, for the sake of propriety. This is also written by name in the *Apostolic Constitutions*, lib. 3, cap. 15. The deacon anoints only their forehead with holy oil; and after him the woman deacon...

^B anoints them, and nearby, one should say, she is fifty years old; unless she is ordained in a monastery. Let her also receive the canonical precepts, in the likeness of clerics who are ordained, and let her live with no stranger, but only with parents, and children, and brothers, and uncles. But if she lives with another apart from these, for this very reason let her not be brought to ordination. But even if she has been ordained, let her be deposed, and both she and the one who has cohabited with her shall be subject to the present law, and to the penalties ordained against fornicators. But if after ordination she marries, or turns to another way of life, she is guilty of death, and her property shall be adjudged to the church or the monastery in which she was ordained; and the one who defiled her or married her shall be punished in like manner by the sword and by the confiscation of his goods.

Every cleric, even if he is appointed among the readers, if he departs from the sacred ministry or pursues another way of life, if he is indigent, he shall be an attendant; but if he is wealthy, he shall become a councilor, according to the measure of the property of his estate. ^D The number of clerics serving the divine worship in each church, as well as the quantity of revenue, and the power... [index: entries preserved]

^A of any diocese, let the patriarch, or metropolitan, or bishop, and the clerics who do not observe this rule, be removed from the priesthood. Moreover, the magistrates who do not report violations of the same, shall pay a penalty of five pounds of gold. Given on the seventeenth of the Kalends of April, in the consulship of Belisarius and Eutropius.

II. Concerning bishops and clerics.

The present constitution, since it is later in time, renews all the chapters of the constitution before it. It ordains, however, that when necessity demands that a bishop be ^B ordained (76) by the bishops (77), the clergy and the leading men of that city (78) shall choose from among three persons (79) clerical or monastic.

Annibal Fabrot’s Notes

^A And let them, if they wish, along with the laity, with the holy Gospels set before them, make decrees, saying in them that they know these men to be in conformity with the canons, and that they live with neither wife nor concubine, nor have children. But if one has already been a married man, they lived with her as from a state of virginity.

Let not a curial official or an apparitor become a bishop, unless he has first spent fifteen years leading a solitary life. But if he has been made bishop contrary to these things, let him be restored to his own condition.

Let no one under thirty years of age be ordained a bishop.

Let a layman, if he has not been enrolled in the clergy for three months, not be promoted to bishop.

Let a curial official, having led a solitary life for fifteen years, be ordained a bishop, and he is freed from his status, ^B the

Notes of Annibal Fabrot

Council of Laodicea. I cannot go along with their opinion; for it is truer that the right and power of electing remained with the people. But since, as the plebs disagreed among themselves, it often led to sedition, for that reason the election was taken away from the plebs by the Laodicean Fathers, can. 12: "For seditions were arising from this," as Zonaras says on the said canon. Regarding the plebs rushing into seditions because of private interests, see Gregory Nazianzen, orat. 19; Evagrius, lib. II, c. 15; Theodorus Lector; Sozomen, lib. V, Histor. ecclesiast. c. 23 and 24; Socrates, VI, c. 10; Anastasius Bibliothecarius in Conone and in Sergio II; Gregory of Tours, Histor. lib. II, c. 43; Sidonius Apollinaris, lib. IV, the last epistle. Gregory Nazianzen complains about the election by the plebs in the said epistle 19 and elsewhere.

No one is ignorant that in the beginning the election of the Roman pontiff and of the rest of the bishops lay with the clergy, the people, and the princes; although, regarding what is said about the people, some think it should be understood in such a way that the consent of the people was employed only to approve the election already made by the clerics. See can. Si quis 28, 16, quæst. 1, and the gloss on the word: Vel populi, and can. Sic vive 26, in the same cause and question. Hildebert of Le Mans, in epistle 12: "For what shall I say of an election in which it is in no way permitted for the people to precede the clergy, but to follow the elector with their assent." Others contend that the election of bishops lay with the people, can. Sacrorum 63 distinct. cap. Querelam, extr. De elect. But whether the people elected the bishops together with the clerics, which could be proven by various places in authors, or whether they approved an election already made, it is only certain that it was the custom for bishops to be elected with the people at least present or attesting, because the proceeding did not happen without their consent. D. Jerome in can. Licet 8, quæst. 1.

But with time proceeding, the consent of the people ceased to be employed in elections, cap. 2 extr. Justinian does not exclude the plebs, but admits the primates of the city, *tous protous tes poleos*, Nov. CXXIII. As far as the princes are concerned, the right of the people seems to have been transferred to them. Hugo Grotius in his book *De imperio summarum potestatum circa sacra*, cap. 11, from num. 20 up to num. 25, and Franciscus Florens, on the title *Decretal. de electione*, should be consulted.

As for Christian priests, an age of 35 years was indeed set down by Justinian in Nov. CXXIII, c. 1. But from Nov. CXXXVII, cap. 2, it is enough to have completed the 30th year, as also in the canon 17 of the Council of Agde, and from it the canon *Episcopus*, dist. 77; Lateran Council, can. 3. This is the age of a perfect man, dist. can. 17, and of the law of the Visigoths, lib. X, tit. 2, c. 3; D. Gregory Nazianzen in oration 40: "For this state of age holds the proof of virtue and the time for teaching." For this age has a perfect argument of virtue and the maturity of teaching. Theophylact on Luke, cap. 5: "For that age is most perfect." And on John cap. 1: "‘The Lord is called a man’—perhaps because of the perfection of his age; for he was 30 years old when he was baptized." Hildebert of Le Mans, epistle 12; S. Jerome, *contra Jovinianum* lib. I: "Therefore one is chosen among the twelve apostles, so that with a head constituted, the occasion of schism might be removed." But why was not John the virgin chosen? It was deferred to age, because Peter was older, lest a man still an adolescent, and almost a boy, be preferred to men of advanced age. Gregory VII, epist. 5, to the bishops of Britain, does not admit a certain young man, illustrious in birth and honest in character, to carry the burden of the episcopate. Nevertheless, D. Chrysostom writes that the consideration of age is not to be had as much as that of virtue and piety, on the Epistle of Paul to Timoth., and D. Chrysostom in George of Alexandria, in the *Photian Excerpts*. The same is written by Albert Krantz, *Histor. Bremensis* lib. IX, cap. 47; and Hincmar in the *Life of S. Remigius* says that he was elected archbishop at the age of 22. Finally, to omit other examples, Eleutherius, on account of his exceptional virtue, was ordained bishop of Illyricum while in his twentieth year, as Nicephorus Callistus writes, lib. Histor. ecclesiast.

(82) A layman unless for three months. This law is followed by Leo and Constantine. The Synod of Auvergne II, c. 9; and the Council of Orléans V set the year. In the *Breviatio canonum* of Fulgentius Ferrandus it is also recorded from the Council of Sufetula that whoever is a layman elected for the episcopate should first pass through all the ranks for a year in ecclesiastical ministry. Cresconius also reports in his *Breviarium canonicum*, c. 164, from the Decrees of Pope Celestine tit. 21, that it is not fitting that a layman be ordained bishop while the clerics of the Churches are despised. Nevertheless, Novella six, c. 1, verse *Prius autem*, six months had been set.

^A so that he may provide a half and a fourth part of his own estate to the curia and the treasury. If within six months the decrees concerning bishops have not been made, let the competent patriarch or metropolitan ordain whom he wills, at the peril of his own soul.

That if they do not have a supply of three persons who make the decrees, they may resolve upon one or two, according to the abundance or shortage of the place. He who is ordained contrary to these things loses his ordination. And he who ordains him is separated from his ministry for the space of one year, with his property being assigned to the Church.

A bishop who is to be ordained, if accused, is not to be ordained before the discussion of the cause. The accuser, if he is defeated or abandons the accusation for the space of three months, is relegated, and the ordaining bishop is subjected to the same penalties for the violation of the law.

Every bishop is to be ordained without payment, and he who gives, or receives, or mediates, shall lose his priesthood; furthermore, that which was given shall be assigned to the Church. But if he who received it is a layman, he shall return double that which was given to the Church; and he who has received a security in this regard shall return it as well, and pay the sum which it contains.

Read the seventeenth constitution of the present title, which is later in time, and ^B renews the provisions concerning the ordination of bishops.

The patriarchs of Rome, Constantinople, Alexandria, and Theopolis, and the Archbishop of Jerusalem, shall provide what was ordained from the beginning for enthronement fees and customary payments, provided they do not exceed twenty pounds of gold. But the metropolitans ordained by them or by any synod, and likewise those promoted to a bishopric by the metropolitans, if the Church to which they are to be ordained has a revenue of not less than thirty pounds of gold, shall pay one hundred *nomismata* to the ordainer for enthronement fees, and three hundred to his clerics and notaries. ^C But if it has less than thirty pounds of gold... ^D [the text breaks off here, as the sentence is incomplete].

the annual revenue of the church is less than ten pounds but not less than five pounds, let them grant fifty solidi to the ordainer, and seventy to those around him. If the annual revenue is less than five pounds, but not less than three, let the ordainer receive eighteen solidi, and those around him twenty-four. But if the church’s revenue is less than three pounds, ^B but not less than two, let six solidi be given to the ordainer, and twelve to those around him. For a revenue of less than two pounds of gold, let nothing at all be given. If anyone receives more than what is prescribed, let him return triple of what was given to the church. The person about to be ordained may, both before his accession to the episcopacy and after his ordination, offer his own property to the church to which he is to be ordained.

Every episcopacy frees one from paternal power, 92 from adscriptitious status, and from servile condition.

A bishop or monk shall not be called to guardianship. Other clerics, if they wish, may undertake the guardianship of their relatives, declaring their intention to the magistrate within four months. They shall not, however, be compelled to take on the guardianship of strangers.

No bishop, or monk, or cleric ^C shall become a tax-collector, or administrator of public affairs, or a contractor for taxes, or of the properties of others, or a curator of houses, or an agent for legal matters, or a guarantor for such sureties, whatever rank of priesthood he may hold; for it is permitted to them only to take care of ecclesiastical matters, according to the constitution of this text.

Holy churches and other venerable houses may lease to one another and to their own clerics, and may grant emphyteutic leases, provided they do not involve their administrators, chartularies, their relatives, or those connected by affinity. The bishop who acts contrary to this forfeits his own property, which is then assigned to the church; and the cleric shall give such penalty to the church ^D as the bishop shall determine. Those who have entrusted to clerics of any rank, or to monks, the collection or administration of public or private affairs, or who have accepted them as guarantors for such causes, shall not be entitled to sue the venerable houses, nor the clerics themselves.

^A nor can they be held liable for their estates, but they shall also make restitution from their own means for any loss incurred by the public treasury.

Let a bishop not be brought forward to give testimony; rather, with the holy Gospels set before the bishop, and public officials present, let him testify to what he knows. For the sake of a financial or criminal case, let no bishop be brought forward or summoned without an imperial decree; the judge who acts contrary to these things shall be delivered to torture and exile, in addition to the forfeiture of his belt.

Let no bishop or cleric depart for foreign lands without a decree from the sovereign or a permit from the one who has jurisdiction over them; and when departing, let him not delay his return beyond the space of a year; for he shall receive no expenses from his church. But if he is canonically summoned and does not return within the appointed time, let another be ordained. ^B When he arrives in Constantinople according to the things said, let him be announced to the Emperor through the patriarch of that city. The text concerning these matters runs thus: "We forbid the most God-beloved bishops to abandon their own churches." And after other words: "So, however, that it may not be permitted even to those bishops who are under the most blessed archbishop and patriarch of Constantinople to enter the imperial city without his permission or our decree." But if in this manner a bishop of any place has set out for foreign lands, let him not abandon his own church for more than a year. Those bishops who arrive at the imperial city, as has been said, of whatever diocese they may be, must above all else approach the most blessed ^C archbishop of Constantinople, and thus through him arrive at our Serenity.

Let patriarchs and metropolitans hold common synods once or twice a year, in which they may judge cases between themselves and those of the bishops and clerics subject to them, and dispose of canonical matters that arise.

Let a cleric not engage in dicing, nor keep company with one who dices, nor watch him playing, nor attend theatrical spectacles, inasmuch as if he does so, he is cast into a monastery for three years.

Let a bishop not dismiss his cleric under duress. ^D

^A A bishop or presbyter who excommunicates someone before the case has been examined in the manner the canons require must incur the same penalty, with the superior bishop releasing the one who was bound and subjecting the bishop himself to the penalty for as much time as he deems appropriate.

Let a bishop strike no one, nor forcefully enter a city from which he has been ejected. For if he should attempt to remove himself from the place to which he was condemned to dwell, he shall be cast into a monastery in another province.

Let clerics be learned in letters; let them have no concubine or natural children, nor let those who have had them be ordained. Let them cohabit with a lawful wife joined to them in virginity.

Let no one be ordained a presbyter under thirty years of age, nor a deacon under twenty-five, nor a reader who has not entered his eighteenth year, nor a deaconess who has not exceeded forty years. She must be a virgin, or one who has lived with a husband from her own virginity.

If anyone wishes to accuse a cleric being ordained, let the provision established by us regarding bishops prevail in his case as well.

An unmarried man who is to be ordained a deacon or subdeacon must vow to remain unmarried; the bishop cannot permit him to marry, unless he wishes to lose his episcopate.

A presbyter or deacon who marries ^B must be handed over to the curia along with his estate. If a reader marries contrary to what is permitted, or contracts a second marriage, let him not be promoted further.

Let no curialis or civil official henceforth be enrolled in the clergy, since both the curia and the office claim the one who has become a cleric; unless he happens to have lived as a monk for fifteen years. Such a person, even though he has become a cleric from being a monk, must not marry, nor may he advance to a degree of priesthood that does not prohibit marriages.

He who from being a cleric becomes a layman must be handed over to the curia.

A curialis who was enrolled into the clergy before this constitution must perform financial duties through substitutes, while being exempt from corporal duties.

He who is enrolled into the clergy must not be provided with more than the annual rations by custom. ^{C D}

^A He who undertakes a religious charge shall do so gratuitously; and he who gives, receives, or mediates shall lose his priesthood, unless the gift is applied to a religious place. But if it is a layman who receives or acts as mediator, double that which was given shall be exacted from the curators of that same religious house. However, those who manage the aforementioned charges have the liberty, before these are entrusted to them, if they wish, to offer something to those same religious houses for the salvation of their own souls.

A slave who is enrolled among the clergy with the knowledge and without the objection of his master is manumitted. But if the master is unaware, he may reclaim him into servitude within a year; after a year, however, he may not—unless the slave has entered upon another life (i.e., died). An *ascriptitius* (adscriptus) may become a cleric in his own estate even against the will of his master.

He who builds a religious house shall choose those who ought to perform the sacred worship therein, so that the bishop may ordain them if they are worthy; but if not, let him choose better men.

The clergy, up to and including the cantors, shall be diligently intent upon the churches and their other sacred ministries, having their own camp-peculium or goods acquired by themselves—even if they are under the power of another—and they may make a will concerning these, while preserving the legitimate portion for their ascendants and descendants. Note that the constitution mentioned the clergy up to the cantors. ^{B C} A presbyter or deacon who has borne false witness shall be separated from sacred ministry for three years and shall live in a monastery. But if he has borne false witness in a criminal case, he shall be despoiled of his clerical status and punished according to the laws, just as other clerics who have been false witnesses in any cause whatsoever.

Regarding pecuniary suits against clerics, the bishop shall take cognizance and the governor shall execute the judgments, provided that the litigants have agreed to this. If either of them objects within ten days, the governor shall examine the sentence, and if it has been rightly conceived, he shall ratify it, with all further appeal ceasing; or he shall pronounce what seems right to him, in which case an appeal remains from his sentence.

A bishop who, by Imperial or gubernatorial order, takes up a case, shall refer the appeal that follows to the one who transmitted the case to him.

If a cleric is accused criminally before his own bishop, after the proof of the crime he shall be deposed and handed over to the competent judge for punishment. If the governor examines the crime and finds the cleric guilty, he shall send the acts to the bishop so that he may depose him and hand him over for punishment. If the bishop objects, he shall refer the acts, together with his own, to the Emperor, and shall await his command regarding them. In the meantime, the cleric shall be under legal security. ^D If the bishop refuses or delays taking cognizance of a pecuniary suit brought against his own cleric,

^A let the governor hear it, the cleric providing security under the obligation of his own property, without an oath. But if an ecclesiastical dispute is brought against him, let the bishop alone be his judge.

When bishops bring cases against one another, let them be tried before their own metropolitan, with two bishops from the synod hearing the causes along with him. But if either of the parties does not agree to their judgment, the appropriate patriarch shall examine the verdict, fearing no appeal.

If a metropolitan is the one being sued, let him be judged by his own patriarch. The same procedure shall be observed for a cleric who sues his own bishop or metropolitan. But all the persons mentioned, whether they are being judged before their own bishops, or metropolitans, or patriarchs, or before any other individuals, shall offer neither bail nor sworn caution for the sake of the lawsuit, but only security under an obligation of their property. ^B

Every cleric who is an administrator of religious places shall be required to pay whatever it is established he owes, when the accounts are rendered by him, and after payment is made, if he says that the accounts were exacted from him unjustly by his own bishop, let him appeal to the greater bishop; these rules having force also regarding his heirs.

Let a cleric not travel abroad against the will of his own bishop, fearing the aforesaid penalties which the constitution has established against bishops.

Every bishop who is found in Byzantium ^C shall be sued only before the praetorian prefects or the sacred judges, in the place where the original contestation of the suit took place in his homeland; for where the original contestation is, there the end of the lawsuit is also pursued.

The apocrisiarius shall not be sued on behalf of those who sent him. If, however, he sues someone having received instructions, let a countersuit be allowed. Likewise, he shall also be sued on behalf of those matters which he contracted while serving in his task of communications. These things also hold true for bishops who have come to Constantinople for ordination or some embassy, with the statutes of prescription by long time ^D not being damaged in any way by their absence.

Let a cleric and a monk be sued without injury, both in their own person and through proxies. But let a nun not be dragged from the monastery, but let her be sued through a proxy, with the judge who transgresses this being stripped of his belt; and the executor, besides what is indicated, being subjected to torture and relegated, with the bishop having permission to report this matter to the emperor.

An accused cleric shall provide four siliquae by way of sportulae. But if an executor has been sent to them in the provinces by imperial, or patriarchal order, or by the permission of the governor, let them provide one solidus. But if many are cited for the sake of one cause, let one sportula be provided for the sake of all. A bishop accused for his own cause shall provide no sportulae. In no way whatsoever let him be...

of his church, but [of the person] himself. But he who receives fees beyond the established amount shall restore double what he received, and shall lose the rank he held.

^B A cleric shall live together only with his mother, daughter, and sisters, and others who are beyond the reach of base suspicion. But he who cohabits with another, unless he desists when exhorted, or is convicted of having had the habit of lewdness with her, shall be handed over to the [civil] court. An bishop shall live with no woman at all in his house.

A deaconess shall not live with a man who affords an occasion for evil suspicion. If she does not comply [with this], she shall spend her life perpetually in a monastery, dividing her property among her children per capita, so that she may have sustenance in the monastery from her own portion. But if she is without children, the church and the monastery shall inherit her estate.

He who insults a bishop or cleric in the course of a sacred ministry or a procession, after the application of torture, shall be sent into exile. But he who hinders the sacred ministry itself or the procession shall be punished with capital punishment.

Let no layman hold processions without a bishop or clergy. And the crosses of the processions must be stored in the churches.

He who is to be abbot of a monastery shall be elected by the votes of the monks, not necessarily the first by rank, but the one who excels in the goodness of his life.

If the abbot is ignorant of the status of the one who is about to embrace the monastic life, he shall not grant him the habit before three years. But after the three years, even if he is a slave, or a tenant, or an adscripticius, he shall grant him the habit. For he shall be free, having restored to his master the goods which he brought into the monastery. But if he becomes a wanderer or chooses a worldly life, he shall be returned to his former status.

^C All those who live in a cenobium shall sleep separately in one or two dwellings, except for the infirm and the anchorites.

Monks and nuns shall not live together promiscuously; but double monasteries shall be abolished, with the men being separated from them and removed to other places.

Nuns shall choose for themselves an apocrisiarius, who is to be tonsured and ordained by the bishop, provided that he has been shown to be honest and worthy.

^D Every substitution and every trust, made under the condition of marriage or the procreation of children, is extinguished, both in the person of a male and a female, whether it concerns a dowry, or a direct donation, or an inheritance; provided those who are burdened with the performance of these things betake themselves to the clerical state or to the solitary life and persevere in these until death. Except if it happens that such goods are ordered to be yielded for the ransom of captives or the sustenance of the poor. For if they themselves do not expend them or leave them to [others per capita].

^A pious causes, such substitutions or trusts are not extinguished. Except for monks and nuns. For as it concerns such persons, such property, along with their other goods, belongs to their own monasteries, even if they themselves have left their monasteries.

The property of a monk, if he is childless, shall belong to the monastery; but if he has children, he may, even before he begins the solitary life, and while he is living in the monastery, divide his own estate among his children, provided he reserves to himself—that is, to the monastery—the portion of one child. If he dies intestate, the monastery succeeds him, with the children receiving their legitimate portion as in an intestacy.

He who has embraced the solitary life dissolves the betrothal contracted with him without penalty; but if he transitions to the solitary life after having already contracted a marriage, he is obligated to perform those things which pertain to the case of death. If both have embraced the monastic life, the marriage is dissolved without penalty. ^B

The reason of ingratitude shall have no place among those ascending or descending for those causes which occurred before the transition to the monastic life. Nor may anyone withdraw the person who has embraced the solitary life from the monastery.

He who passes from one monastery to another causes his goods to be assigned to the former.

Let monks conduct their business through apocrisiaries.

He who, having been a monk, becomes worldly, should be sent to another monastery along with the things he acquired. But if he becomes worldly again, he shall be handed over to the curia. ^C

If anyone shall abduct, or solicit, or violate an ascetic, or a deaconess, or a nun, or any other woman who maintains a religious life and habit, let him be punished with capital punishment, together with those who were participants in the crime; and their property shall be awarded to that venerable house or place in which the woman dwelt, under the supervision of the governors, and the bishops and stewards of the places, with the woman herself being sent into a safer monastery along with her property. If such a woman was a deaconess and a mother of children, let her give the legitimate part of her property to her children. But if the venerable houses do not claim said goods within the interval of a year, the fiscus shall exact them. ^D

Let no worldly person or actor imitate or mock the religious habit, knowing that if he does so, he will be subject to torture and punished with exile. Given in the month of May, in the twentieth year of the reign of Justinian, after the consulship of Belisarius V.

III. That when governors delay in hearing the rights of one approaching them, they may be compelled by the bishops to do so; and the things which follow hereafter.

The same emperor... Therefore God ... Whoever is wronged by someone, either civilly or criminally,

^A if, upon approaching the governor, he does not receive an answer, let him approach the bishop, so that, by sending or by coming himself to him, the bishop may ensure that the petitioner departs having obtained his right. For if the governor does not heed the bishop, he will incur imperial indignation, since the person who did not obtain justice will show this very fact to the emperor, having taken letters from the bishop with him. But if he is troublesome to the emperor without these, he will suffer the same penalties which the governor would have endured if he were convicted of not having kept the law and equity for the person who had approached him.

If anyone in a lawsuit suspects the governor, let him have the bishop joined as a judge, who, having examined the case together with the governor, shall impose a sentence on it, written or unwritten, according to law ^B and equity. He who is about to suffer an injury from the governor himself, let him have the bishop as his judge. But if the governor does not abide by the decisions made by the bishop, and the emperor learns that the bishop has judged rightly, the governor—that is to say—will be subjected to the ultimate punishments.

Let the bishop take care that the executors or bailiffs do not take larger fees or salaries for the execution than what has been established by law.

In cities where governors are not present, let the lawsuits be heard by the *defensores*. But if they are suspected, let the bishops judge together with them, conducting themselves at all times without respect of persons in all the aforesaid matters.

Bishops, or clerics, or monks, must not come to Constantinople ^C without commendatory letters from him who has jurisdiction over them. For if they do this, they endanger their priesthood.

The bishop can report the delinquent executors for their negligence, if they exact larger fees than what is established by law. Given in the year of the reign of Justinian...

IV. That clerics should answer before the bishops.

The same emperor to John, the Praetorian Prefect. Since we have written many sacred laws, and the things which follow.

Let clerics bring their pecuniary lawsuits before their own bishops, and if they cannot decide them, let the governors institute an examination and decide them by a summary path, yet in such a way as to preserve ^D for the clerics the privileges they have.

In civil offenses, let the clerics of the provinces be subject to the governors, and the bishop is compelled to remove from his place the man whom the governor deems guilty.

Within two months ^A let any accusation instituted against clerics be examined and brought to an end. But if a cleric should fall into an ecclesiastical crime, the bishop alone shall judge this, nor can the governor have access to his trial.

V. Concerning the deposition of Anthimus, and Severus, and Peter, and Zoora

The same emperor to Menas, archbishop and patriarch. A matter not unusual for the empire, etc.

This constitution, condemning the above-written with anathema, commands that heretics neither teach their own doctrines, nor hold unauthorized baptisms, nor grant communion; it expels them and punishes those who harbor them. Furthermore, it assigns the houses and properties in which they perform their worship, or from which they draw their sustenance, to the orthodox churches, decreeing also that the writings of Severus be delivered to the fire, and that those who transcribe them shall lose their right hand.

VI. That holy mysteries may not be celebrated in private houses

The same emperor to the same. It is interdicted by the ancient laws, etc.

In a private house let no holy ministry be performed, nor anything else that pertains to the priestly state, unless the bishop of the place has first been requested and has permitted the clerics residing in that region to do so. If anything is done in violation of this, the house itself is confiscated to the treasury, and its owner shall incur the imperial indignation. ^C Indeed, the governors, if they know of this and do not correct it, shall pay a penalty of fifty pounds of gold, and the officials shall suffer an equal fine.

VII. That no one may build an oratory without the consent of the bishop, etc.

The same emperor to Menas, bishop of Constantinople. It is permitted regarding those things which pertain to the most holy churches, and what follows.

Whoever wishes may restore an ancient venerable house by the will of the bishop. But it shall not be permitted to anyone to build a new one otherwise than by first having the will and approval of the bishop, and after having set apart the expenses that must be made for the cult of the venerable house, and for the lighting of lamps, ^D and for the provisions of those who are to perform the sacred ministry therein: for which things he shall specifically make a donation to the venerable house.

Read the second constitution of the present title and the third constitution of the one that follows. For you will see how these same constitutions, being later in time, regulate the matters contained in this present chapter.

It behooves bishops to be diligent in their own churches [and it is common? to commit] what is akin to homicide. And ecclesiastical [theft] is like sacrilege, or ordination given for money, or the performance of any archieratic right in a foreign parish without the consent of the bishop of that place.

[Annibalis Fabroti notæ.] (6) Peter and Zoora. Whom the synod of Constantinople condemned.

and not to be absent from them for a long time, knowing fully that not only will no expenses be provided for them by the administrators of their church, but also that they will be subjected to the penalties decreed concerning these matters. Read the second constitution of this title concerning the whole chapter, which is in the text of constitution 197. ^A Immovable property of churches, which are in metropolises, shall not be alienated in any other way than with the presence of the metropolitan, and two other bishops of the same diocese, authorized by the synod, so that the business may be transacted in their presence. Read the second constitution of the following title, which is later in time than that which exists in the text of constitution 127, concerning the alienation of ecclesiastical property. Given on the Kalends of May, in the twelfth year of the reign of Justinian, under the consulship of John.

VIII. That the cities situated near Viminacium which are subject to the Romans should be under a special archbishop, and not under the bishop of Thessalonica. The same Emperor to Castellioni, bishop of Justiniana Prima. ^B All the bishops of the cities which are around Viminacium shall be under the archbishop of Justiniana Prima, since the prefecture of Pannonia has been transferred there. Given in the month of May, under the consulship of Belisarius.

IX. A law by which it is ordained that the number of clerics of the holy Great Church and of the remaining churches be defined. The same Emperor to Epiphanius, Archbishop of Constantinople. Already, indeed, by common and special law, etc. This constitution, which is local, regulates the number of clerics who ought to serve for sacred worship in the Great Church of Constantinople, and in the venerable houses under it, prohibiting anyone from being ordained hereafter without a stipend, and from being transferred by patronage from one church to another. Given on the 19th of the Kalends of April, under the consulship of Belisarius.

X. That clerics should not be transferred from one church to another, into the established number of those who are deficient. ^C The same Emperor to Anthimus [or Anthemus], Archbishop of Constantinople. We have recently written a law, and so forth. This constitution also is local; it commands that in place of those clerics who are deficient in the venerable clergy of the Great Church of Constantinople, no outsider should be introduced, nor anyone supernumerary from other churches, until the number of those who perform sacred ministry in each church is reduced to that which was established from the beginning. ^D Moreover, by expelling those who were introduced from among outsiders, it disciplines the stewards

^A by the examination of the daily allowances provided to them. Given on the Ides of August, in the consulship of Belisarius.

XI. That which is called "insinuative" among clerics, and so forth. The same Emperor to Mena, Bishop of Constantinople. Having received petitions from many. Only those who are ordained in the Great Church of Constantinople shall demand customary fees; but clerics of other churches, if they demand customary fees from those ordained in them, shall lose their priesthood, and those who succeed them shall take their ^{B C} grades. Given before the third of the Nones of November, in the eleventh year of the reign of Justinian, after the third consulship of Belisarius, in the first indiction.

XII. Where some clerics depart, and substitute others in their place, and so forth. The same Emperor to the same. Many clerics, etc. The first chapter of the constitution is general. It orders that those clerics who are subrogated in the place of others who have departed, receive their food allowances, and that the latter are not to be admitted thereafter. The second chapter is local: for it admonishes the bishops of Constantinople to conduct the ordinations of the clerics under them by examination, having no regard for the petitions of those who present them, even if they themselves provide the expense ^C for the same holy houses to which they desire them to be ordained. Given in the eleventh year of the reign of Justinian, after the consulship of Belisarius.

XIII. Concerning monasteries and monks, and so forth. The same Emperor to Epiphanius, Bishop of Constantinople. The life which is spent in solitary exercise, etc. Let no one begin to build a monastery, unless first, after prayers have been offered by the bishop, the venerable cross is planted in that place. Let no one take the monastic habit, unless he has first persevered for three years in a monastery, demonstrating his diligence ^D concerning his exercise. But he who has thus lived as a monk, even if he is a slave, becomes free after three years. He who has sustained an inquiry concerning his status, if he passes to another life, is dragged back into servitude. However, it is permitted to a master, who provides a guarantee of not harming the slave, to reclaim his own slave before the three years, together with those things which he took away and brought into the monastery. But if he is proven guilty of no offense, and if it is evident that the servant is honorable and diligent in his exercise, he cannot take back such a slave even before the three years. However, the master may demand the property which it is evident he brought into the monastery. But if that slave himself, who has embraced the monastic life, should abandon the monastery, it is permitted for the master to drag him into servitude.

^A Monks ought to live in a common place, except for those who are called to withdrawal and quiet, the anchorites and hesychasts (7).

The property of a monk who has passed to another life shall belong to his monastery.

He who is about to embrace the solitary life should first settle his affairs, knowing that his property will come with him to the monastery and be subject to its domain.

He who is about to become a monk shall give to his children what is owed to them by law, or first make up the portion, and to his spouse her dowry and whatever falls to her in the event of his death.

Note from this constitution that both the dowry and the pre-nuptial gift are computed within the quantity of the legitimate portion.

If a monk should serve in the military, losing his property, he becomes a minor official.

Let no one receive him who moves from one monastery to another; for his property shall belong to the first monastery.

He who has become a cleric from being a monk shall not marry, nor commit fornication. For otherwise he shall be reduced to private life, nor will he be able to engage in any military service.

It is not simply rank, but the goodness of his life that establishes the abbot.

Whatever things have been said concerning male monks and clerics, the same hold true for females.

Given on the Kalends of April, in the consulship of Belisarius.

XIV. How monks ought to live. The same Emperor to Menas, Bishop of Constantinople. The solitary life, etc.

This constitution, confirming the one placed before it in this work, adds a more accurate rule of life and observance for monks. ^B It also forbids that the tombs of men be made in women’s monasteries, nor that women be buried in men’s monasteries; saying that both of these provide an occasion for sin. It does not permit a woman for any other reason to be seen in men’s monasteries, nor men to come into women’s monasteries.

Note the rule that monks are devoid of kinship if they emulate the heavenly life.

Given on the Nones of May, in the thirteenth year of the reign of Justinian, in the consulship of Apion.

XV. The constitution concerning before whom monks or nuns ought to litigate. The same Emperor to the same. Having learned the matter, etc.

This constitution, exempting the cases of those living in monasticism, both men and women, and also of consecrated virgins, from the audience of governors, commands the bishops established in every place to examine them, and by a summary path ^D to decide them according to the laws.

^A If they do not observe these things, the governors shall lose their office and pay a penalty of ten pounds of gold to the treasury. As for the officials, those who have dared to summon any of the indicated persons, they are to be cast into an ecclesiastical cloister and disciplined by the bishop.

Given the Ides of May, in the thirteenth year of the reign of Justinian, in the consulship of Apion.

XVI. This constitution interprets the former constitution concerning those who enter monasteries, and so forth.

The same Emperor to John, Praetorian Prefect. A matter of this kind has come to our attention. ^B This present constitution orders the previous constitution—which wills that the goods of those who renounce the world be assigned to the monasteries in which they have dedicated themselves to the solitary life—not to extend to those things which were done before it, assigning the decision of such matters to the previous laws.

Given the Ides of October, in the twelfth year of the reign of Justinian, in the consulship of John.

XVII. Concerning the ordination of bishops and clerics, and concerning synods, and the oblation.

The same Emperor to Peter, Master of Offices. Regarding the civil laws, and so forth.

It is necessary that the decrees for those being ordained as bishops be made by the clergy and the leading men in the cities, with the holy Gospels set before them, concerning three persons; and each one is to swear by them that he has chosen them not through payment, or promise, or friendship, or favor, or any other affection whatsoever, but because they know that those who have been voted for are of the right faith and of honorable life, and are over thirty years of age. ^C And also that they know them to have neither wife nor children, whether legitimate or natural, nor to have had or to have a concubine; but if any of them had a wife before, that he had her as his only one, and one who had lived with him from her virginity. They must also add to the decrees that they know that none of those to whom the votes are given is a *curialis* or a public official; except if the *curialis* or official has spent no less than fifteen years in a monastery, living a life beyond reproach according to the monastic rule; so that from these three persons who are thus chosen, a bishop may be ordained by the election and judgment of the ordaining bishop. ^D The person about to be ordained must also be required to provide a *libellus* to the one who is to ordain him, by which his integrity in doctrine is guaranteed. He is also to recite the holy oblation which is performed during the holy communion, and the prayer which is accustomed to be said at the holy baptism, along with the other prayers. Moreover, the one being ordained himself shall swear that he has not given anything, nor promised, nor will he give anything hereafter—neither by himself nor through another person—to the one ordaining him, nor to those who have made the decrees for his ordination. If these things are not kept, both the one who is being ordained and the one who is ordaining are to be deprived of the episcopacy. When accused

the one about to be ordained as bishop, presbyter, deacon, or any other cleric, or hegumen, ^A the one who is to perform the ordination or the appointment must examine the accusation in the presence of the accuser and the party pursuing the case. But if the accuser deserts the judgment, he must nonetheless institute a most accurate investigation into the accusation within three months; and if he finds the one about to be ordained guilty, whether according to the canons or according to civil law, he must defer the ordination. But if the accuser has not proven his case or has fled, if he is a cleric, he shall be expelled from his rank; if he is a layman, he shall undergo the appropriate corrective punishment. If these things are not observed, both the ordainer and the one ordained are likewise to be expelled. The things stated here also hold true in the appointment/creation of hegumens.

A synod of bishops must be held during the eighth month [October] of each year, and those who have metropolitan rights must convene ^B before the competent patriarch, and bishops before their own metropolitans: so that before them inquiries may be made regarding canonical matters, and regarding whatever things some, whether of the bishops themselves, or of the clerics, or of the monks, or of the hegumens, bring forward—such as things that are admitted contrary to the divine canons—according to the order of their own jurisdiction. These matters are to be kept, not merely by the care of the bishops themselves, but also by the civil magistrates.

Those who perform the oblation or lead the prayer of holy baptism must pronounce the prayers and the oblation in a clear voice. For this is prescribed both by Paul, the prince of the apostles, and by the holy Fathers. Priests who do not do this are declared by this constitution to be liable to the judgment of the great God, and will not escape imperial action. ^C

Given on the Kalends of April, at Constantinople, in the thirty-ninth year of the reign of the Emperor Justinian, after the twenty-fourth consulship of Basilius.

Paratitla of Title IV

The archbishop of Justiniana Prima holds, in the provinces subject to him, the place of the apostolic see of Rome, and the bishop of Carthage in Africa holds a similar rank of priesthood.

Bishops who have metropolitan rights must enjoy this perpetually.

Bishops ought to oversee the administrations of those who have been appointed as stewards in certain venerable houses by those who built the same venerable houses.

The said constitution ^A determines what the bishop ought to do concerning things left for the distribution to the poor or for the ransom of captives, without the designation of persons or names. The churches under them are the heirs to the estates of bishops and other clerical persons who die without successors and without a testament.

Constitution 9 of the same title. Stewards of the churches ought to reclaim with impunity the immovable properties of venerable houses which have come to the imperial majesty under the title of exchange, if they have been transferred to another person. Note, however, that the later constitution 54 states the contrary.

Title 3, constitution 1, which is in the text 118. Bishops, along with the possessors, ought to report the injustices of the governors to the emperor. ^B

Bishops ought to examine canonical questions together with the governors of the provinces. Read the 4th constitution of the present title, for it forbids the governor from interjecting himself into a canonical hearing. It is in the text as constitution 82.

Constitution 22 is in text 150. A bishop must not permit anyone to act as a suppressor of violence or a pursuer of robbers in any place.

Likewise, a bishop must not permit civil or military governors, or their subordinates, to prohibit the making of wills, or their publication, or for marriages to be contracted, or nuptial gift instruments to be drawn up, or that the deceased be consigned to burial, ^C or that any other thing be proceeded with which is not forbidden by the laws.

Likewise, a nun must not be pulled away from her own places.

The same constitution commands that adulterous women who are to be punished should be placed into a monastery, decreeing what should be done with their substance, whether they have children or parents, or whether they have none.

Constitution 24 of the same title, which is in text 15. By the decree of the bishop and the possessors, with the holy Gospels placed before them, let the defenders of the cities be appointed.

Title 10, constitution 2, which is in text 22. One who dissolves his own marriage for the sake of ^D solitary exercise is held liable under the law of death.

Title 12, constitution 2, which is in text 48. That the bishop ought to take care that theatrical women are not prevented if they wish to depart from the stage.

Title 18, constitution 8, which is placed in text 51. That bishops ought to observe what has been decreed concerning those who are castrated.

TITLE II. ON ECCLESIASTICAL AFFAIRS AND TITLES.

1. Law concerning the fact that ecclesiastical property is not to be alienated or exchanged; and so forth.

The same Emperor to Epiphanius, Archbishop of Constantinople.

This constitution recalls and renews almost all the laws of the present institute into one summary, as it is a later one. It annuls the 17th constitution of title 2 of the first book of the Code of Anastasius, and accepts the 14th constitution of the same title of Leo, ^A and subjects those who, contrary to this sanction, attempt to alienate the immovable property of churches, or of other venerable houses, or of monasteries, or of colleges, to the penalties contained therein; and it also promulgates a general law concerning ecclesiastical and priestly property situated in any province and in any place whatsoever—among which it also numbers civil payments—that they may not in any way be alienated, or given in perpetual emphyteusis, or offered under the title of a special mortgage, or granted under the name of an exchange, except to the emperor himself when ^B necessary use demands it.

As for immovable property belonging to the clergy, the emphyteusis, it says, shall be temporary, lasting until the life of the person who received the emphyteusis, and of his children and grandchildren, and indeed also of his wife or husband, if they have expressly agreed upon this, with a reduction of a sixth part of the original income.

The suburban estates of churches and venerable houses are not to be granted in emphyteusis according to the quantity of their income, but having made an evaluation of them—as much as the income can be collected from ^C the price of the suburban estate, distributed over twenty years—let him who is to receive the emphyteusis agree to pay such an annual income; and let the emphyteuta promise that he will pay the twentieth part of the evaluation made of the suburban estate as the annual income.

Contumacy on the part of one not paying the emphyteutic rent, if it extends to two years, dissolves the emphyteutic contract. Moreover, the constitution takes away from the emphyteuta the right to claim for improvements, and subjects him, his own property, and his heirs to the restitution of the property to its ^D former state, if the estate has been made worse.

When certain semi-ruined structures belong to sacred colleges, or are attached to the emphyteutic lands themselves, the one acting in the capacity of architect in those places, with the Holy Gospels set forth, and in the presence of the administrators of the religious houses, and of five presbyters and two deacons—if that sacred house has so many—shall determine what is to be paid for them; in such a way that he who receives the emphyteusis may use for building the materials that are found in those same semi-ruined structures. For the rest, this constitution does not permit the emphyteutic leases of immovable priestly property to be continued to the same persons.

^A He who takes possession of priestly property for the purpose of personal use must be a man of means, and he shall donate another similar property to the pious house; so that both, after his death, may return by way of ownership to the venerable house. He who has dared to purchase immovable priestly property shall lose both the price paid and the property itself, and shall restore the fruits of the interim period, with the stewards and administrators who sold it being subject to the penalties of the constitution of Leo. He who has received it by title of donation, besides the fact that he shall not enjoy the property donated, shall also provide another similar to it. He who has acquired by way of exchange shall restore what he received and shall lose what he gave. He who received it under a title of specific mortgage shall lose both the credit and the mortgage. All those mentioned above, however, may initiate the appropriate legal actions against the stewards and administrators who contracted with them, and may provide for their own indemnification.

A pious house is not prohibited from borrowing on a general mortgage.

He who has taken an emphyteutic lease in perpetuity, losing the property, ^B remains permanently subject to the canon of the emphyteusis. A notary who has lent his services to the aforementioned contracts is punished with perpetual exile, not even hoping for a return by means of sacred decrees.

Magistrates who permit such contracts to be dictated or inserted into the records before them, lose both their magistracy and their dignity, and are subjected to the confiscation of their property.

Sacred vessels shall be alienated solely for the redemption of captives, with those who violate this being subject to the penalties of the constitution of Leo.

Things prohibited by this constitution can by no means be accomplished through an imperial pragmatic sanction: for the quaestor who dictates the sanction, and the magistrates who receive it, pay a penalty of 50 pounds of gold, and the notary who lent his services is subjected to the penalties of the constitution of Leo, while the bishops, administrators, and stewards, ^C if they have accepted such a sanction, incur the risk of losing their priesthood.

The administrators and stewards of pious houses and institutions shall not make leases or emphyteutic grants of immovable priestly properties against their will, nor shall any sanction be procured for this purpose by anyone.

A monastery in which there is an altar, or where a liturgy has been celebrated, shall not be alienated, so as to be transferred into private use. For otherwise, he who has purchased it loses the price paid, and the church shall restore the alienated monastery to its ancient state, and the mortgage shall cease.

A pious house shall not receive even by way of donation a sterile/unproductive possession. But if it has received one, let it be returned without penalty. ^D

^A For those who have given it bring forward the appropriate lawsuits against the curators and administrators who contracted with them. The observance of this constitution is entrusted not only to the bishops, but also to civil and military magistrates, with anyone having the power to accuse its violators. Note the rule, that those things which are promulgated in common and religiously, and for the benefit of all, ought to prevail rather than those things which were made through the zeal of certain persons for the corruption of public laws; and furthermore, that the constitution itself does not curiously inquire into those things which are not specifically proposed to it, and that it in no way innovates. Given on the 17th of the Kalends of May, after the second consulship of Belisarius.

II. Concerning various ecclesiastical chapters.

No one may sell, or give, or in any way alienate any immovable property, or civil grain-dole, or rural slave of the Church of Constantinople, or of the venerable houses or hospices situated in the city or its territory (with the exception of venerable monasteries), with only an exchange for an imperial house being permitted, and with those things which are called "colonaria" rights being forbidden. ^C An emphyteusis by the same most holy Church and the venerable houses subject to it shall be made only for the person of the receiver and two of his successors thereafter, with the sixth part of the existing canon being remitted.

If it is a suburban property that is given into emphyteusis, and it has an income, it may be leased with the payment of the full canon, or even with an addition. If there is no income, the administrators of the same venerable houses may grant it for a set amount, if they wish.

And when that which is given into emphyteusis comes in any way to the person of the emperor, or to a city, or to the treasury, or to a senate, or to another religious house, it shall be lawful for those who granted it into emphyteusis either to leave the thing with them or to rescind the emphyteusis.

Those half-ruined buildings which religious houses cannot rebuild may be granted to those wishing to receive them in perpetual emphyteusis, upon the payment of a third part of the rents which were collected from them when the buildings were still intact; and that third part shall fall due immediately from the beginning of the contract. If the emphyteuta prefers, after he has built it himself, to have the emphyteutic canon set at half of the rents gathered after the building is completed, he may pay this very amount in the name of the emphyteusis, and use for the building those materials which are found in the half-ruined structures. ^D He who receives for his use an immovable property of the

^A said venerable houses, shall immediately give to them, by right of ownership, a property of similar income and tax liability, upon the condition that after his death, or after a fixed time which does not exceed his life, the given property itself also reverts to the most venerable house.

Leases made by the indicated religious houses shall not exceed a period of thirty years.

If one of the religious houses is in need of money for fiscal or other requirements, let an immovable property be given as a specific pledge, so that when the creditor has been satisfied from it both in capital and in interest at the rate of one percent per quarter, he shall return the pledge.

Emphyteuses and leases which extend beyond a period of five years shall not proceed without the consent of the archbishop or of those who preside over the religious houses. For it is necessary that ^B the stewards and chartophylaces take an oath that the contract contains no fraud. But if there are no chartophylaces, the contract shall be made by those who preside over the religious houses, with the holy Gospels set before them, and this shall be inscribed in the instruments which are drawn up concerning it.

No agent or administrator of the affairs of the venerable houses, nor any person related by blood or marriage to them, shall receive emphyteuses or mortgages of these same venerable houses, either by himself or through a surrogate. For otherwise, the venerable houses shall claim the assets of the recipient himself, as well as those of the stewards and chartophylaces. ^C

In the case of immovable properties of churches situated in the provinces, and of venerable and pious houses, and of monasteries established in Constantinople and everywhere else, a perpetual emphyteusis proceeds, provided that all the aforementioned conditions regarding emphyteuses granted by the churches of the Queen of Cities hold good for it. Read chapter 2 of this constitution.

If any of the said churches or venerable houses is in need of money for the payment of fiscal taxes, or for the discharge of debt, and does not have movable properties from which the debt can be paid off, let an immovable property be given as a specific pledge to the creditor, so that the debt, and the interest on it at the rate of one percent per quarter, may be ^D paid from it. But if such a pledge is not sufficient to discharge the debt, and a sale is undertaken without loss before the competent patriarchs, metropolitans, and bishops, let the administrators of the religious houses take an oath that there is no other way of discharging the debt; and let them disclose the amount of what is owed, and thus let the sale of the immovable property proceed, with public notices posted for twenty days, and encouraging those who wish to purchase, so that the one who offers more may be preferred. When these things are done, let the sale take place; and let the purchaser pay the price to the creditor, and let this be explicitly written down under oath in the

^A purchase agreement, and [let it be written] that this was done without any detriment or circumscription of the venerable house. But if no purchaser is found, once the aforementioned proscription is made, let the creditor receive the property in full right of ownership, with the tenth part of the accurate valuation of the thing being added. But whether a sale takes place, or the creditor takes the thing in payment, let the administrators of the venerable house and the greater portion of those serving the sacred cult therein give their consent to what is done. And that which is alienated should not be given according to the choice of the creditor, but in proportion to the unprofitable possession. ^B To those who have lent, or will subsequently lend, let not the church or the venerable house otherwise account the monies received, unless it is first proven that they have gone to the expenses of the churches or the venerable houses. But let the creditor, before such proofs, institute the appropriate actions against those who contracted [the debt] and against their heirs; but it is not permitted for him to proceed against the venerable houses. Let religious houses make exchanges among themselves with the consent of the greater portion of those who serve the sacred cult within them. What has come to any religious place from the Emperor, or is to come, shall not be sold, or pledged, or exchanged, or alienated in any other way whatsoever. Nor, if religious houses themselves do any such thing among themselves, let it be ratified. If a monastery has been alienated to a private state, let it be restored to its original form through the church. Let the administrators of the venerable houses alienate the useless or harmful properties of the same, with judicial acts being performed, the holy church of Constantinople alone excepted. ^C The oeconomi, and the administrators, and the chartularii of the venerable houses, and their kinsmen and relatives, who in any way purchase or handle immovable property of the same venerable houses, either through themselves or through intermediary persons, are subjected to the penalties which were previously set forth concerning them. ^D The lessee and the emphyteuta of properties belonging to religious houses, if for two years he is contumacious in the payment of the agreed rent, or makes the thing itself worse, he is to be removed from the emphyteusis, and he shall not have the power to bring suit in the name of improvements; or the emphyteutic canon is to be demanded from him, and the interest, if this be deemed advantageous to the venerable house. Let the Church of Jerusalem sell the houses which it has in the same city for a price equal to the annual pensions which are collected from them in fifty years. The Church of Odyssus and of Tomis may

^A redeem captives, unless such alienation has been specifically forbidden to them.

Sterile properties which have come to religious houses shall be returned to those who gave them, in such a way that the indemnity of the venerable houses is also consulted, and furthermore, if any gold by chance was given to them, it shall not be returned to those who gave it.

A venerable house shall not be compelled to buy a sterile or fertile property. Note from this very distinction that all others are compelled.

He who wishes to take ecclesiastical property for usufruct shall follow the decision set forth above in the fourth chapter.

^B Venerable heirlooms shall be alienated only for the redemption of captives. But if churches have a surplus of them, they may be sold (if not melted down, to another religious house; or if melted down, to anyone), with the price being applied to the discharge of debt.

He who makes a contract contrary to these [stipulations] shall return the property to the venerable house along with the fruits of the intervening time; the price that was paid, and that which was given by way of remuneration, or exchange, or for any other cause, is not to be returned at all.

He who has contracted for an emphyteusis contrary to the law shall return the property, remaining nonetheless perpetually encumbered by the obligation of the emphyteutic canon.

He who has received [property] under the title of a donation shall return double what he received, along with the fruits of the intervening time.

The creditor loses the property itself that was pledged, along with the debt.

He who has drawn up a contract contrary to the law is condemned to perpetual exile.

The present constitution likewise rescinds what may be attempted hereafter, without curiously inquiring into things done beforehand.

Given on the Ides of June, in the eighteenth year of the reign of Justinian, after the third consulship of Basilius.

III. Concerning ecclesiastical titles.

The same Emperor. Concerning ecclesiastical canons.

The definitions established by the four councils—the Nicene, the Constantinopolitan, the Ephesian, and the Chalcedonian—shall hold the force of laws, and their dogmas shall be honored as divinely inspired Scriptures.

The first see of the priesthood is the Roman, the second is the Constantinopolitan.

The Archbishop of Justiniana Prima holds the place of the Apostolic See of Rome in the provinces subject to him, and he shall ordain the bishops of the cities of Dacia Mediterranea and Dacia Ripensis, and Praevalis, and Dardania, and Upper Moesia, and Pannonia.

The right of the pontificate and the privilege granted to it shall be preserved for the African see.

Those bishops who possess metropolitan rights shall enjoy them perpetually.

Let the privileges of churches and religious houses, as well as those things which have been variously granted to them by the liberality of the emperors, be guarded. ^A

Let churches be immune from every base and extraordinary tribute, and from the exactions and burdens of lucrative offices, being subject only to the construction of roads and bridges.

In the place of any long-term prescription, only the exception of forty years shall be opposed to religious houses.

Whoever wishes to build a venerable house, or to restore one that is crumbling with age, binds both himself and his own heir to the completion of the work, with the venerable cross being first fixed by the bishop in the house that is to be built.

Whoever performs secret conventicles in his own house, or suburban residence, or estate, loses the ownership thereof, with the church of the place receiving the property. But if a guardian, or a receiver, or an emphyteuta, or a lessee has compelled such conventicles, without the knowledge of the master, he shall be expelled from the province, and his faculties shall be adjudged to the church. ^B

Let the church of those places in which the deceased had his domicile claim for itself a legacy left to Christ our God. But if a legacy has been left specifically in the name of one of the saints, and there are many religious houses of his nomination, let the legacy be given to the poorest. If, however, there is no sacred house of the same nomination in the whole city, or its territory, or in the province, the church of those places claims the legacy: the same holds true in the case of an inheritance and of the fisc. The church is even preferred to the fisc [(11)].

An heir commanded to build, if it be an oratory house, shall complete this work within five years; but if he is commanded to build a nosocomium or other similar house, and has not completed the building within the space of a year, he is forced meanwhile to buy or rent a house, and thus to bring to an end what has been piously commanded to him. As for those who ought to care for these same religious houses according to the will of the testator, let the heir choose them, with the bishop of the places having the power of inspecting their administration; and if he finds them unsuitable, of substituting others in their place. ^D

Those things left for the distribution to the poor or for the redeeming of captives shall be administered according to the will of the testator. But where the testator has not openly commanded what kind of poor he wishes to be fed from the things left by the testament, let the mandates be fulfilled with all discretion. But if he who is ordered to do this, being admonished once and twice by the bishop through public persons, delays in giving effect to what he is ordered, he himself loses all profit that came to him from the testator, and the bishop of those places, receiving the aforementioned profit along with other things,

^A shall fulfill his will; the metropolitan, and any other person whatsoever, has permission to bring such a question before the bishop, so that what was piously decided by the deceased may in every way be carried into effect.

Legacies left to religious houses, or churches, or institutions must be paid within six months from the publication of the testament. If this is not done, the person burdened with providing them shall pay, in addition, their fruits, and interest, and any increments.

An annual legacy left to religious houses or institutions may not be alienated to any person; unless the places and the persons burdened are separated by a long distance. For then the venerable houses may exchange such legacies for ones in nearby places, with an addition of a fourth part of the annual quantity bequeathed, or they may sell the thing bequeathed for an annual price paid over the years. ^B

Bishops and administrators of venerable houses and institutions may grant to whomsoever they wish what was acquired before their administration or episcopacy, as well as things received during their administrations and episcopacy from the final wills of kin up to the fourth degree (12). But as for things acquired outside of these, whether from succession of kin or in any other way, the churches to which they belong shall succeed to them. They may, however, spend these on the redemption of captives, and the sustenance of the poor, and other pious causes; this holding true also for those in hospitals, and orphanages, and for other administrators of religious houses. ^C

The priestly property of those bishops and clerics and others who die intestate and without heirs shall be inherited by the churches to which they belong.

No religious house shall lease immovable property to a heretic, sharing in the penalties established by law along with the lessee. It says that the heretic, if he has given anything, loses it; and the one who leases it is removed from all administration, and sent to a monastery, and is excluded from holy communion for one year; and, finally, the property itself is restored to the religious house.

An estate alienated by an orthodox person to a Jew, or Samaritan, or Montanist, or another heretic, shall be claimed for its own property by the orthodox church which is situated on that estate. ^D

Temples built by heretics, and new synagogues built by Jews, shall be claimed by the churches of those places for themselves.

He who knowingly leases his own property to a heretic shall lose the revenues, the church claiming them, and the heretic [shall lose the rent].

Annibalis Fabroti notes. (12) Ad quartum gradum. Ex l. 41 sup. De episc. et cleric. Bishops, if they have acquired anything after their election, cannot transfer it to another, unless it is what has come to them from parents, brothers, or paternal uncles. But from Novella cxxxi, c. 13, it is granted that they may freely dispose of these things which have come to them by right of kinship up to the fourth degree; the rest is reserved for the Church.

^A and cast out from his possessions, and subjected to the confiscation of his goods. But if he did this in ignorance, let him be exempt from penalty.

Let orphanotrophoi exercise the function of guardians and curators in orphan matters, without being required to provide sureties or being subject to accountings. Let them, however, make an inventory of orphaned property, and let them bring the appropriate lawsuits against those who are obligated to the orphans.

The Orphanotropheion of Constantinople, together with the Xenon of Samson, and all the xenones and holy houses subject to them, shall use and enjoy the privileges of the Great Church of Constantinople.

Given on the 17th day before the Kalends of April, in the eighteenth year of the reign of Justinian, in the fourth consulship of Basilius.

IV. That the Roman Church should have the hundred-year prescription. ^B Idem Emperor to John, Bishop of Rome. As to the origin of the laws, and the rest. This constitution is local, establishing nothing further than what is contained in the inscription.

Given in the month of May, in the consulship of Belisarius.

V. A constitution which abrogates the hundred-year prescription in houses of prayer. Idem Emperor to Elias, Praetorian Prefect of Illyricum. As to medicaments, and the rest.

This constitution, abrogating the privilege of churches and religious houses which desires that a hundred-year prescription be opposed to them, exhorts that an exception of forty years should succeed in its place, by which alone the lawsuits of churches and religious houses may be quashed. ^C

Note that this present constitution does not entirely abolish the statutes concerning those things which are owed to the cities and those which were left for the redemption of captives (to which the constitution cited in the first book of the Code, under the second title, which is the twenty-third in number, similarly gave this privilege of a hundred-year prescription).

Given on the Kalends of June, in the fifteenth year of the reign of Justinian, in the consulship of Basilius.

VI. Concerning churches established in Africa. ^D Idem Emperor to Solomon, Praetorian Prefect of Africa. As to the venerable, and the rest.

Let the churches of the Africans claim as their own the treasures and sacred vestments taken from them by the Arians, not being repelled by the prescription of long time, provided that they pay the fiscal dues, which are known to be owed in the name of the estates.

Let no heretic baptize, nor be a decurion, or hold office. He who is rebaptized shall abstain from all military service. Let a Jew not have a Christian slave, nor circumcise one who is a catechumen.

^A Let no place of prayer belong to heretics. Let the privileges granted to the Church of Carthage be preserved inviolate, with no one daring to drag anyone from its bounds, unless the fugitive is a murderer, or a raper of virgins, or one who has done violence to Christians. Let no one take away what has been donated to the African churches. Dated on the Kalends of August, in the consulship of Belisarius.

VII. That the Church of the Holy Resurrection, and what follows.

The same Emperor to Peter, Bishop of Jerusalem. Already, indeed, as to the matters concerning the prohibition, and the rest. The Church of the Holy Places may alienate houses in the city belonging to it for the price of an annual rent, which is collected every fifty years, provided that a decree of the archbishop of the same city regarding the alienation intervenes, and that the proceeds themselves are applied to the payment of money borrowed by it for the purchase of revenues and other possessions. Dated on the 15th day before the Kalends of June, after the consulship of Belisarius.

VIII. Concerning the alienation and payment of ecclesiastical properties.

The same Emperor to John, Praetorian Prefect. And the study concerning the laws, and the rest. The constitution of the first title of the second part of this code, which is later in time, provides a full and more recent form concerning the alienation of ecclesiastical immovable properties. ^B However, the present constitution, which is prior in time and had force in its own days, commands that when churches have no movable goods by which a debt contracted by them can be dissolved, an immovable property should be given to the creditor in proportion to the debt. But if a fiscal debt is at issue, and the church lacks movable assets, then, with its clergy meeting together with the bishop before their own metropolitan, the matter of the present debt is to be examined, with the holy Gospels set forth, and a decree being made, and a judgment being issued by the governor permitting the alienation, the real property may be sold; yet strictly on condition that the proceeds be paid into the treasury, and that the public receipts for the payment be transacted in the records, with the testimony of those who carried these things out, so that the buyers may receive the properties and succeed to the rights of the treasury, and have security from it. ^C This constitution exempts from its own legislation the Great Church of Constantinople, and the pious houses under its care, and the monasteries under its authority, and its surroundings. Dated on the 14th day before the Kalends of September, after the consulship of Belisarius.

^A IX. That henceforth the exchanges of ecclesiastical property should not take place in a haphazard manner with the most religious emperor, and what follows. The same emperor to Menas, bishop of Constantinople. About which he wrote, and the rest. Immovable properties which have reached the emperor from venerable houses by way of exchange, if they have been transferred to another person, should be reclaimed by the stewards of the time. Read the 9th title of the 4th book of the same constitution, which is of a later time, chapter 10. Except for the Great Church of Constantinople, let the other venerable houses contract between themselves perpetual emphyteuses of immovable properties, provided, however, that these do not pass to another person. Read the second title of this work, and the second constitution, which is of a later time, chapters 6 and 7. Dated on the Kalends of November, in the third year after the consulship of Belisarius, during the reign of Justinian.

X. That those who leave fields, or houses, or vineyards to the church of Mysia for the redemption of captives, or for the sustenance of the poor, and the rest. The same emperor. We know that we previously promulgated, etc. This constitution is local, at that time permitting, according to its own specification, the alienation of what is left to the church of Mysia for the redemption of captives or the sustenance of the poor, when they are far away, and this is what the one who bequeathed them specifically ordered. Dated on the Kalends of April, in the thirteenth year of the reign of Justinian, in the consulship of Appio.

^C XI. Concerning the workshops of the church of Constantinople, and the rest. The same emperor to Longinus, prefect of the city. Since our majesty takes care, etc. This constitution grants to eleven hundred workshops of the Great Church of Constantinople immunity from performing duties for the transport of those who depart from this life. It also commands that eight hundred of these undergo bodily service, while the rest are to provide the payment, not permitting any other workshop to have an excuse under this pretext. Dated on the Kalends of July, after the consulship of Belisarius.

XII. This constitution regulates the expenses which must be incurred for the funerals of the deceased. The same emperor to John, Praetorian Prefect. Every good work, and the rest. The constitution is local, pertaining to Constantinople; it determines the sum of the expenses which must be incurred for the transport of those who die in it. Dated on the third day before the Nones of November, in the reign of Justinian, the 12th year, after the third consulship of Belisarius. And equal counterparts. Title 1 is…

Constitution 1. Money given or promised for ordination should be adjudicated to the churches according to the norm of the constitution. The property of a deaconess who is corrupted, or marries, or shifts to another life, the church or the monastery under it shall inherit. Constitution 2. That what is given for ordination in violation of the norm of the constitution ^B should be adjudicated to the churches. The property of a bishop who has commissioned the leasing or emphyteusis of immovable ecclesiastical property to the administrators or chartularies of his own most holy church, or to their relatives or kin, shall be adjudicated to the church. Those things given on account of the assignment of an established pious duty shall be claimed by the pious house which is the master of it, [acc.] according to the norm of the constitution. That those who have administered ecclesiastical property should be required to give an account of whatever the bishop, when examining their accounts, holds them responsible for, with the demand for payment extending also to their heirs. The property of a deaconess who is cohabiting with a man, providing evil suspicion after ^C an admonition, must be adjudicated to the churches according to the norm of the constitution. When property left to clerics or monks under the condition of marriage or the procreation of children should be applied to the churches, the constitution states. The property of those who have abducted a nun, a deaconess, or another pious woman is to be adjudicated to the pious houses belonging to them. To the same title, constitution 7. That no one may build an oratory, unless by the opinion of the bishop he has, by a special donation, set apart those things which pertain to the care of the house, the lighting of lamps, ^D and the food supplies of those who are to perform the holy worship therein. Constitution 13. The property of those monks who have passed over to another life will belong to their monastery. He who is about to embrace the solitary life must first make a testament regarding his own affairs; for henceforth he will not have power over them, but the monastery will. The property of a monk who has moved to another community will belong to the previous monastery. Title 3, constitution 3. That it is necessary for the houses in which heretics hold separate conventicles to be adjudicated to the churches. Title 14, constitution 22. That the property of a woman who has been adulterous, whether she has children or parents, or does not, shall be claimed according to the norm of the constitution

^A Migne will claim the monastery into which she is sent. Read the whole chapter regarding this: for it discusses also those who dissolve marriages without [reason of] a bill of divorce, inflicting similar penalties upon them.

Title 7, Constitution 7. The property of captives, if they have not been redeemed by their own children, the church of those persons shall take into its possession under inventory.

The property of one who has assumed the habit of a cleric, if he has neither children or orthodox relatives, nor any who are participants in the communion of the faith to succeed him intestate, the church shall claim for up to the space of a year after his death; but after a year, the fiscus [shall claim it].

Title 10, Constitution 9. The property of that woman who has sent a repudiation to her husband without just cause, via succession, shall go to that monastery into which she is sent, according to the sanction of the constitution.

Title 2, in this book, Constitution 8. Except for the Great Church of Constantinople, venerable houses, a decree intervening, may institute the alienation of immovable property for the public utility. ^B

TITLE III. CONCERNING HERETICS, AND JEWS, AND SAMARITANS.

1. Concerning heretics and their wives.

The same Emperor to John, Conservator of the Provinces. That there may be one help for us in every place of our republic and empire, and so forth.

He who does not communicate with the churches in which the bishops of the individual places assemble is a heretic, liable to the laws enacted against heretics. ^C

Note that those who hold the opinions of Severus, or who embrace the dogmas of Dioscorus, are called Acephali [Headless].

The wives of heretics, being themselves heretics, shall not enjoy the privilege of the dowry or any other [privilege]. If, however, after they have repented, they access the communion of the Church and remain in it until the end, let them enjoy the fruits of those same privileges.

Given on the 5th of the Nones of May, in the 15th year of the reign of Justinian, in the consulship of Basilius.

II. Concerning Samaritans.

The same Emperor to Areobindus, Praetorian Prefect. There is nothing so great of any subject of ours, and so forth. ^D

This constitution permits Samaritans the facility of making a will, and of succeeding intestate to their relatives, and of leaving legacies, and of giving, and of manumitting, and of performing other such contracts with impunity.

When any Samaritan dies without having made a will, having left children or relatives, whether Christian or Samaritan, who are of the same degree and order, he who professes the right faith shall be his successor, being preferred —

^A to one of the Samaritan condition. But if he is closer to an orthodox person by reason of degree or order, the Samaritan is preferred to the Christian. Know, however, that the Samaritan who is excluded from the succession, if he later becomes an orthodox Christian, receives his portion along with the others who were orthodox from the beginning, though he is deprived of the fruits that were produced in the meantime.

Samaritans may write their own ascendants and descendants, who are Samaritans, as heirs according to their own choice. If, however, Christians of the same degree are called to the succession with them, they shall not register Samaritans as heirs for more than two twelfths [one sixth] of their property. But as for the remainder, those of them who are able may write Christians. If they fail in this part, the ^B *innoficioso* [plea of an undutiful will] may be invoked against their testament, the things mentioned in the previous division regarding repenting Samaritans also holding good here.

And note that Samaritans, from the half of the third part that is suitable for their Christian successors by testament, may also give legacies to Christians; the treasury henceforth having no power to take anything from their patrimony, as the present constitution carries its own legislation over into the preceding facts as well.

Written before the 17th of the Kalends of July, in the 25th year of the reign of Emperor Justinian, after the consulship of Belisarius.

III. Concerning the Samaritans; a constitution which abrogates the one established before this.

Emperor Justinian to Diomedes, Praetorian Prefect. The impious heresy of the Samaritans, and their irrational madness...

This constitution ^C abolishes the second constitution of this title, and commands that, for the future, Samaritans may not inherit by testament or without one, nor may they receive legacies, or obtain any property by title of donation. Furthermore, neither may Samaritans, or heretics in general, be called to the succession of others by intestacy; not even if they pretend to accept the right faith of the Christians, while in reality they do not think so. Neither, likewise, may they appoint them as heirs in a testament, or leave them legacies, or give to them; unless those who are to receive these things are orthodox both in faith and in deeds. For if no such person exists, it is decreed that their patrimonies must pass to the most sacred treasury after their death.

However, it excepts from its legislation those farmers who follow the Samaritan religion, so as to commend to them the fields which are ^D cultivated by them. For it grants to them, provided only that they continue to cultivate the fields themselves, that they may appoint as their heirs and legatees their ascendants, and descendants, and collateral relatives, even if they are Samaritans. But if none of these be found, it allows the owner of the estate in which the deceased was performing the duty of a farmer to take the property left by him, and in these matters performs the role of the treasury.

^A He also forbids Samaritans from serving in the military, acting as advocates, serving as assessors, or exercising any civil care whatsoever. As for those who were previously Samaritans but wish to persist in their error, while keeping the Sabbath or doing other things by which they are convicted of having received the most holy baptism in hypocrisy, he orders them to be proscribed and exiled perpetually. He punishes with the same penalties those who offer them impious patronage against the upright faith of the Christians. Furthermore, he wills that those who hasten to baptism should not be easily admitted, but that those who possess some sense of good doctrine should be instructed for two years and thus be baptized. Very young children, however, and those who do not understand the doctrine itself, may obtain the most holy baptism even without this observation. He does not permit a Samaritan to have a Christian slave, but immediately snatches this slave into freedom. If a Samaritan wishes to become a Christian, freedom is granted to him immediately as well.

V. Edict concerning heretics.

Emperor Justinian to the Constantinopolitans. To be the first and greatest good. ^B This constitution prohibits heretics from holding separate conventicles, and commands that the houses where anything of this kind is committed be assigned to the churches, and that those who are the authors of the conventicles as well as those who convene for them be subjected to the penalties of the constitutions themselves.

Given on the fourth of the Nones of April, in the eighteenth year of the reign of Justinian, after the consulship of Basilius.

V. That it may be lawful for the Hebrews, if they wish, in their synagogues, to read the holy Scriptures in the Greek or Latin tongue, or in the language of other peoples, changing according to the places, so that those who assemble may understand the reading according to the Septuagint and the edition of Aquila, and so that what is called by the Hebrews ^C the "secondary law" (16), as it is not contained in the holy books, may be entirely forbidden. And that those who do not acknowledge the judgment or the resurrection of all be driven from every place, and likewise those who do not confess that the angels are a creation of God.

The same emperor to Areobindus, Praetorian Prefect. The Hebrews, indeed, ought to have been listening to the holy books, etc.

This constitution delivers nothing more than what is contained in the inscription, except that it subjects to the penalties of the constitutions those archipherecitae ^D or seniors who prohibit the recitation of the Scriptures from being made in the Greek language, or in other languages besides the Hebrew.

Annotations of Annibal Fabrot.

(16) He understands the traditions of the Fathers which are contained in the text of the Talmud.

(17) Archipherecitas. See about these Nicolaus Serarius in his *Rabbinus* (first part) against Scaliger, ch. 17.

^A subjected to correction, confiscation of property, exile, and corporal punishment. Those, however, who say that there is no judgment or resurrection, or who deny that the angels are creations of God, he subjects to the most extreme punishments.

Dated the 6th of February, in the twenty-sixth year of the reign of Justinian, after the twelfth consulship of Basilius.

Paratitla of Title III

Title 1, constitution 5. This constitution directs that heretics must neither teach their own dogmas, nor institute baptisms separately, nor assemble in perverse conventicles; and it assigns the houses in which they perform their worship to the orthodox churches.

Constitution 6. If a synaxis be held in a private house without the consent of the bishop, such house shall be confiscated, just as if it were in the possession of a heretic.

Title 2, constitution 3. Whoever performs unauthorized assemblies in his own house, or suburban property, or estate, forfeits the ownership of the same, and the church of that place shall claim such premises for itself. ^B

Let no religious house lease immovable property to a heretic, under pain of the penalties established by law, to which the lessor and lessee shall both be subject.

An estate alienated by an orthodox person to a Jew, or a Montanist, or any other heretic, shall be claimed by the orthodox church situated in that very territory as its own property.

Temples built by heretics, and new synagogues built by Jews, shall be claimed by the local churches for themselves.

Whoever knowingly leases his own property to a heretic shall be deprived of the revenues, which are to be claimed by the church, and the heretic shall be expelled from the property and subjected to confiscation of goods.

Constitution 6. A heretic shall not baptize, nor be a decurion, nor hold any office. He who has been rebaptized shall abstain from military service. A Jew shall not own a Christian slave, nor circumcise a catechumen. ^C

There shall be no place for heretics to pray.

Title 4, constitution 3. Let the governor examine matters moved against heretics for the benefit of the public treasury, and let him not permit anyone else to inquire into these, unless such authority has been granted to him by divine command.

Constitution 24. That defenders must be orthodox.

Title 7, constitution 7. That children being heretics can be reckoned among the causes of ingratitude by parents.

A heretic father, whether he wishes it or not, shall have orthodox children or relatives as his heirs. The property of a heretic who has no orthodox children or relatives shall be confiscated. If he has assumed the habit of a cleric ^D