Works & Councils of Toledo 43

The Emperor Justinian Augustus to John, most glorious praetorian prefect, twice ex-consul and patrician. Unless at the very earliest opportunity we restore the office of the defensores to its proper order, the truth of the ancient titles will no longer afford us its meaning. For whereas of old various names were imposed on various things, names which plainly signified the force of those very things, this very name of the defensores shows that antiquity set certain men over affairs to keep them free from all injury; and for this very reason in our native tongue we even now call them defensores, because they rescue from evil men those oppressed by injury.

But now this very office of the defensores has in most parts of our commonwealth been so trampled down and so vehemently held in contempt, that it seems to have been sought after for insult rather than for any honor or dignity. Hence obscure men are taken into it, and decrees concerning them are made out of pity rather than from true choice. For those who have no sufficient sustenance and livelihood from elsewhere, these, having begged the votes of the defensores, come to this office, and they are set up as a kind of laughing-stock for the mimes of the governors, since indeed they remove them whenever they will, turning the slightest faults into reproach, and thrust others into their place.

They also appoint vicars to the defensores, and sometimes within a single year admit several men into this office. Whence even the cohortales, and the magistrates of the cities, and those who dwell in them, all hold the defensor in the utmost contempt. And the things done before them are wont to be treated as though they had not been done. For unless the provincial governors so command, they do not even dare presume to draw up any records of proceedings before themselves, serving the governors in all things and attending only to their nods. But if they do draw up certain things, first of all they even sell them.

Then, since they have no archive prepared for this purpose in which to deposit the proceedings with them, what was done perishes, nor would you easily find with them any monument at all of long standing; but those who need the records seek them among the heirs of the defensores and among other successions, where partly things unworthy of credence are found, and partly even they perish and fall away, to such a degree that they are reckoned as if they had never been done.

We therefore, since we have well ordered the duties of the governors, and have brought it about that they should have greater authority among the nations, and since they are too far off to be always able to keep the interests of the cities in view, have on this account judged that the office of the defensores too ought to be raised to its former state. For there will arise a certain fair harmony and concord in this way, if the defensores of the cities occupy the order of judges, and the moderator of the province appear rather a judge of judges, and through this more honored than his predecessors. For the more excellent those are whom one commands, the greater and the more honored is he himself.

In the first place, therefore, this must be ordained: that no one of all men have license to refuse appointment as defensor, but that the most honored inhabitants in turn fulfill this office for their cities (for we have learned that this obtained and was in use in past times also), no opportunity being opened to anyone of refusing this—not if he be adorned with the dignity of the most magnificent and illustrious, nor if he hold some distinguished office, nor if he plead any privilege from the sacred rescripts themselves, even if the granted forms be pragmatic—but with all the inhabitants of the city, namely those who are of some reputation, fulfilling this office in rotation, and when the rotation comes to an end returning to it again and undertaking the aforesaid office, so that the defensor may seem to be a judge rather than a defensor.

Indeed, with a decree made by the common oath of all who are inhabitants of that city—but not of those who only sojourn there. Let him take an oath that he will do all things according to the laws and justice, and let it be confirmed (as we now say) by the command of our most glorious prefects; and let him administer for two years only, and afterward be removed from the office, the most illustrious governor of the province not having license to remove him, but only, if he seem to act somewhat improperly, to refer the matter to the most glorious prefects, so that release from office may come to him from the same source whence it is also given.

There being no power, either for one holding the governance of the province, or for the defensores themselves, to appoint vicars of the defensores; but we forbid these things to them all by every means. Nay rather, let not even the most illustrious governors send vicars into the cities in their own stead, except the defensores themselves, whom we will to supply the place of the governors in the cities, and themselves to take charge of all things in the cities in which they are. Likewise, that wills, donations, and finally everything that properly pertains to the law of records be lodged with the defensores, the most illustrious governor of the province being unable either to hinder what ought to be drawn up, or to prescribe how he wishes it drawn up, or to refuse to issue it when drawn up.

For we by no means grant him license for such a thing, deeming it most absurd that necessary acts should be lost to men on account of governors' affections perchance, or of orders propped up by no reason. But let them also enter into the records whatever anyone shall wish, and let them issue them, even though what is entered into the records reflects upon the provincial governor himself, or upon some of the more powerful, and let no one prohibit this. For it behooves those who are either in offices, or possessed of some power, so to conduct themselves that they do not prohibit acts being drawn up against themselves; nay rather, so to show themselves blameless in their conduct that to no one is given occasion of raising any complaint against them.

Moreover, let no one be prohibited from entering into the records before the defensores concerning whatever matters he wishes, whether the governor be present in the cities or not present—these alone excepted which require jurisdiction and depend on the very authority of the governors. Next, that the defensores of the cities assist by every means those who have the business of public exactions, whether it be needful to draw up records on account of the obstinacy of undevoted contributors, or to be present and to look with present eyes upon the wicked, or to quell a public tumult—let them do this alacriously; in one word, let them in all things hold the place of the governor, and especially when he is absent.

And that the cohortales too, assigned to that region, who reside throughout that city in which the defensor is, obey him and bring him aid, so that, the moderators of the provinces being absent, nothing may seem lacking to the cities through their presence. And let them have also, from the cohort assigned to that province, a registrar (exceptor) to be at their service in the ministry, and two cohortales to execute the matters judged by them. And let them pronounce judgment in all pecuniary cases up to three hundred aurei, our contributors being unable to drag those whom they reckon bound to them before the most illustrious governors of the provinces, if the case stands within the said quantity of three hundred solidi.

But let not the plaintiffs value the suit at more than it is on this very account, in order to crush the defendants by having them brought, not before the defensor of the city, but before the governor of the place. Nay, if they do any such thing, and the verdict shows the case to be less than three hundred solidi, and that of set purpose the valuation was enlarged so that it might be examined before the governor of the province and not before the defensor of the city, the plaintiff alone shall be subjected to the expense of the whole suit. Indeed, let appeals from the defensores be referred to the governors themselves. But if the cohortales commit anything insolently against the defensores, then let the rectors of the provinces seek vengeance and chastise the cohortales.

For we grant the defensores license, if the governors of the nations neglect this, to refer such matters to the throne of Your Excellency, so that from thence aid and fitting vengeance may be imparted to them, and the defensores may truly have, against offenders, a certain imitation and figure of judicial gravity. And if it happen that the defensor of a city dies, let the lot run forthwith, with the aforesaid oath, to another who is called from the order of the rotation, and let him forthwith undertake that charge. But let the decree be referred to and confirmed by Your Highness. And let vicars never at any time be appointed (as we have said) for the defensores, lest again without reason we afford a handle for the former disturbance.

Let Your Excellency also issue orders throughout each province, that in the cities some public house be set apart, into which it may be fitting for the defensores to deposit the records of their proceedings, with someone created there in that place in whose keeping its custody shall be, so that they may both remain the more uncorrupted and be the more quickly found when sought. And let there be with them some archive, and let whatever has hitherto been amiss in the cities be now restored to its former state. And let the defensores be made altogether gratis. And in return for the orders themselves, if the cities be larger, only four aurei shall be given in the court of Your Highness; if smaller, three, as has already been established by our laws.

And if they have any allowances of grain from the public store, they shall receive these too in the customary manner. They shall likewise take cognizance of lighter crimes and apply fitting chastisement. But those who are caught in greater offenses they shall cast into custody and transmit to the moderator of the province.

For thus each city for itself will enjoy judicial care, and the whole nation, set under a greater judge, will feel a greater providence; and a good part of the governors' cares will be cut off, if the defensores of the cities transfer them onto themselves and relieve the governors of the cares which they bear on behalf of the peoples, themselves in part either composing the things committed through injury, or settling controversies for the litigants (and, as has often been said), through this making those who preside over offices more honored. If any too through lack of devotion become more sluggish in paying the public tributes, let the governors of the nations commit the exactions of those who thus show themselves undevoted to the defensores, so that in this also they may be of aid to them.

For the rest, if any appointment of a defensor be made contrary to these provisions, or if he to whom by the order the creation of defensor has come should, under pretext of dignity, or of military office, or of privilege, or of any other thing, beg off from that office, let him know that he will undergo a penalty of five pounds of gold, and none the less, after the exaction of that money to be devoted to the works of the city, that he shall be compelled to discharge the office of defensor. For it is fitting that the more honorable men render their effort and their service to the cities they inhabit, and in a manner repay them this favor in return for their dwelling there.

The things, then, which have pleased us and are expressed through this sacred law, let Your Excellency be zealous to make manifest throughout the provinces over which you preside, by your own dispatched orders, so that all may know that both the greatest, and the moderate, and the least matters are equally a care to us, and that we remove nothing of that kind from our solicitude.

Your Excellency shall also take this into the scope of your orders: that henceforth the governors of the nations give their effort, that those defensores be the more named (in rotation, namely, as has been said) of whom there is a good opinion in each city, and that the decrees be made in common together with the oath to be furnished by them, and that the said rotation be set down in writing, and that thus individuals undertake that office in order for two years. And if any one of these dies, let another be substituted in the place of the deceased, the decree always indeed to be drawn up with the oath.

And he too, when he is about to undertake the office, taking upon himself the prescribed oath, and his creation being completed by the bishop most beloved of God, and by the venerable clergy, and by others who hold a good opinion in the city. This indeed ought even now to be done continually, all (as has been said) proceeding according to this our general law. Moreover, that those too who are defensores even at this present time be set down in the rotation, if they appear to be of such a kind as may be pleasing, and that they continue the office up to two years. But if they have already spent two years in that charge, let them be removed from the office of defensor, unless by common decree they wish to keep him in the same office for another two years also.

But if they have not yet completed two years, and seem worthy to be received into the fellowship of the rotation, let them complete the remaining time, yet so that no one defend the city beyond that term, but subsist only up to this time, unless the common consent of the city, with none objecting, approve him. And if this is done, he shall receive that office for another two years also, and after that is finished let him wholly desist from it, then at last to be a defensor again when the rotation itself shall have brought him back into this order—lest by the perpetual continuation of his office, and by fraudulent renewal through each two-year period, the aforesaid administration be extended to infinity for some.

All these things holding good for all time, inasmuch as with the highest zeal, and vigilance, and by the goodwill of the Lord God toward us, we have devised them and granted them to our subjects. Given on the sixteenth day before the Kalends of August, at Constantinople, Belisarius, vir clarissimus, being consul.