Works & Councils of Toledo 68

The Emperor Justinian Augustus to Peter, most glorious praetorian prefect of the East. Since many and diverse laws have been promulgated concerning alienations, and emphyteuses, and leases, and the rest of the administration of ecclesiastical property, it has seemed good to us to embrace all things in the present law.

We therefore decree that those who govern the property of the most holy great church in the imperial city, or of the orphanage, or of the hospice for strangers, or of the almshouse for the poor, or of the hospital for the sick, or of any other venerable house established in the imperial city or its territory (with the exception of the venerable monasteries), shall have no license to sell, or give, or exchange, or to give by way of a remuneratory donation, or by any other form to alienate either an immovable thing, or a civic grain-allowance, or a rural serf (mancipium), unless an exchange be instituted with the imperial household—and that alone. But neither do we permit anything to be given by way of colonary right.

But emphyteuses we command to be celebrated by the aforesaid most holy great church of the imperial city and by the said venerable houses, both in the person of him who has received it, and in two others in order of heirs—provided, however, that nothing beyond a sixth part of the subsisting canon (rent) be granted to him who undertakes the emphyteusis.

But concerning the suburban estates which pertain to the most holy great church and the aforesaid venerable houses established in the imperial city or its territory, we command that, if indeed the suburban estates have a whole and entire canon in their revenue, they be given in emphyteusis, in the aforesaid manner, by those who govern these very venerable places, both to the one undertaking it and to two other successions, and that in no respect be there any reduction, but rather an increase. If those suburban estates have no revenue at all, we grant license to the dispensers of the venerable places to give them in emphyteusis under a fixed amount (as has been said before).

Furthermore, if it should happen that any thing be given by emphyteutic right by any of the aforesaid venerable places, or come to the imperial household, or to our sacred treasury, or to any city, or to a curia, or to any other venerable house whatsoever, we grant license to the dispensers of the venerable places, by whom the emphyteusis was originally celebrated, when such an emphyteusis comes to any one of the aforesaid persons, to declare their decision within two years: whether they wish to leave that thing with those to whom it has come, and to take away the annual revenue that is comprised in the agreement; or, the emphyteusis being dissolved, to receive it back, if they shall have judged this to be expedient for themselves.

But if there be any places pertaining either to the most holy great church, or to any of the aforesaid venerable houses, in which ancient buildings stand collapsed, from which no revenue at all is provided, while the said venerable houses to which these places pertain are unable to rebuild them, we grant license to the curators of these to hand over those places by perpetual right of emphyteusis. So however, that the emphyteusis proceed, from the very beginning of the emphyteutic period, either at a third part of the rents which were gathered from the buildings still standing;

or, if the emphyteuta should prefer to receive the places on the condition that he first build, and then render to the venerable house from which he receives those same places the half part of the rents which thereafter accrue according to an estimate made—this too we grant to be done. And let the emphyteuta of this kind use, from the demolished buildings, even the materials and rubble found there.

Moreover, if anyone shall wish to receive any immovable thing whatsoever, by way of usufruct, from the most holy great church of the imperial city, or from one of the said venerable houses, let him not receive it otherwise than if he forthwith furnish, by right of ownership, to the venerable house from which he receives that thing, another thing which both has as much revenue as the thing which is given to him, and is not more heavily burdened with public charges; so that after his death, or that time for which the grant of usufruct was agreed by pact (which, however, shall not exceed the recipient's lifetime), each thing in full—both as to ownership and as to usufruct—may come to that venerable house.

Leases also we permit to be contracted by these same venerable houses, for as many years as may please the contracting parties, provided however that they do not exceed the span of thirty years. But if it should come about that any of the aforesaid venerable places be in need of money, in the name of public contributions, or on account of any other necessity befalling the venerable house, let it be lawful for its dispensers to bind an immovable thing and give it as a special pledge, so that the creditor may possess that very thing, and gather fruits from it, and reckon them to himself both toward the very money lent and also toward interest not greater than a quarter of the lawful one-percent (i.e., not exceeding three percent per annum).

But if the prelates of that venerable house shall have discharged the debt, or the creditor be satisfied out of the fruits, let that thing return anew to the venerable house from which it was also given. But indeed emphyteuses, and hypothecations, and leases exceeding five years, we will to be contracted—by the most holy great church of the imperial city, with the decision and consent of its most blessed archbishop and patriarch, on the oath of him in person being present, and of the chartularii, and of the stewards (oeconomi) most beloved of God of that most holy great church—that this contract be made not to the fraud and circumvention of its rights.

But in the other venerable houses, if indeed there be chartularii, let them too swear in like manner, in the presence of the prelate of the venerable house. If there be no chartularii, let the prelates of the venerable houses themselves celebrate the contract, with the most holy Gospels set forth, drawing up such instruments with an oath, that the contract be made not to the harm or circumvention of the venerable house.

To the stewards indeed, and to the orphanage-keepers, and to the dispensers of the rest of the venerable houses, and moreover to the chartularii of them all, and to their parents together with their children, and to others connected to them either by kindred or by right of affinity, we forbid that they receive, either through themselves or through an interposed person, emphyteuses, or leases, or hypothecations of the things belonging to those same venerable houses; they being to know that, if anything of that kind be done, not only shall this be invalid, but moreover the whole patrimony of these persons—both of the recipients and of the stewards, and of the chartularii, and of the dispensers, to whom they are connected in the aforesaid manner—we command shall, after their death, come to the venerable house from which they received the thing.

And these things indeed we have ordained concerning the most holy great church, and the aforesaid venerable houses existing in the imperial city and its territory. Consequently, it has seemed good to us to define the like also in the other most holy churches, and monasteries, and hospices for strangers (xenones), and hospitals (nosocomia), and the rest of the venerable houses situated in all the provinces of our commonwealth, and likewise also in the monasteries existing both in the imperial city and in its territory. We grant license therefore to the aforesaid venerable houses, not only to contract a temporary emphyteusis of the immovable things belonging to them, but also to hand them over in perpetuity by emphyteutic right to those who are willing.

And indeed, if they be most holy churches, or other venerable houses whose governance the bishop of the place carries out either through himself or through his venerable clergy, let a contract of this kind be perfected with his decision and consent, on the oath, in his presence, of the stewards, and dispensers, and chartularii of his venerable clergy, that from that emphyteusis no loss be inflicted upon the venerable house. But if they be almshouses (ptochia), or hospices (xenones), or hospitals (nosocomia), or other venerable houses which have their own governance, then, if indeed there happen to be holy oratories there, by the decision of the greater part of the clerics there ministering, and likewise also of the prelates of the places.

If there be only a hospice (xenon), or almshouse (ptochium), or hospital (nosocomium), or other venerable house, let the prelate of the place celebrate the contract, on the oath of the dispensers of those venerable houses, in the presence of the bishop most beloved of God, by whom they are either promoted or ordained, that nothing be done in that contract to the harm or circumvention of those venerable houses. But in the venerable monasteries, let their superiors, with the greater part of the monks there discharging the ministries, perfect the contract.

And in all the aforesaid cases we command that, with an oath, it be inscribed in the instrument that the transaction is conducted not to the harm or circumvention of the venerable houses; and, with this observance thus proceeding, that the reduction be not beyond the sixth part of the revenue which the thing given in emphyteusis has. But the things which we have ordained above concerning the collapsed buildings pertaining to the venerable houses situated in this imperial city, these too we will to obtain there, in the venerable houses.

But this too it has seemed good to us to ordain concerning the venerable houses: that if any of them, whether on account of public tributes, or from some other cause necessary to that house, become liable for debts owed, and it cannot be done that those debts be discharged out of movable things, then, in the first place, let the immovable thing be given to the creditor as a special pledge, so that, his fruits being gathered, he may reckon them to himself, partly toward the very money lent, partly toward interest not greater than a quarter of the lawful one-percent (i.e., not exceeding three percent).

If in that manner they be unable to discharge the debt, we command that, by those indeed who are ordained by the most holy patriarchs—whether they be metropolitans, or bishops, or archimandrites, or orphanage-keepers, or almshouse-keepers, or hospice-keepers (xenodochi), or hospital-keepers (nosocomi), or dispensers of other venerable houses—there be drawn up, before those same most holy patriarchs by whom they are ordained or promoted, official records (acta); and that, with the oath of the dispensers and the consent of the greater part of those who discharge the ministries in these, the debt be made known, and that it cannot be discharged out of movable property.

But those who are ordained by the metropolitan bishops—whether they be bishops, or archimandrites, or orphanage-keepers, or almshouse-keepers, or dispensers of other venerable houses—let them likewise draw up records of this kind before those same metropolitan bishops. Likewise, before those bishops who are ordained either by the patriarchs or by the metropolitan bishops, and have under their jurisdiction either monasteries, or almshouses (ptochia), or hospices (xenones), or hospitals (nosocomia), or other venerable houses, let records be drawn up in like manner. So however, that, whether before the patriarchs, or before the metropolitans, or before the other bishops, records of this kind be drawn up, the venerable houses sustain no expense or cost for them.

For this reason we do not wish that, in future, before the governors of provinces or the local magistrates, such instruments be drawn up by the said persons or houses, lest they thereby incur some loss. But when these matters have been carried out in this way before the said most holy patriarchs and metropolitans, or other bishops, then the administrators of the venerable house burdened with debt shall, for twenty days, post some written notice in a public place of the city, and in this manner shall invite those willing to purchase the immovable property, so that whoever shall offer more may be preferred to the rest.

And if all these things have so proceeded, let the sale be carried out, the price of the property being applied in every way to the debt, so that the buyer cannot firmly hold that property otherwise than when the price has been paid toward the debt itself; and let this be expressly set down with an oath in the deed of purchase, namely that nothing be done to the harm or defrauding of the venerable house. If in the aforesaid manner no buyer of that property be found, we command that the one to whom anything is owed by any of the aforesaid houses shall, by that right which is called 'in lieu of payment,' take possession of this very property, a just and careful valuation having been made, and there being added moreover to the price a tenth part of the whole valuation up to the same amount: and let the creditor take the property in lieu of payment, to possess it with firm ownership.

Yet so, that the administrators of the venerable house burdened with debt, and the greater part of those ministering in it, consent to such sales. But the immovable property which is handed over in this matter shall be given not at the choice of the creditor, but in fair moderation, partly from the fertile and partly from the barren possessions of the venerable house, and shall be given with regard to their returns, and likewise to the tributes and the rest of their condition and quality.

But if any bishop, or steward, or administrator of any venerable house whatsoever, whether situated in the royal city or in the provinces, shall have taken money on loan, or shall hereafter take it, we command that they shall not charge this against the venerable house itself, unless they have first shown that these sums were applied to the uses of the said venerable house; nor shall the creditor or his heirs have any action concerning them against the venerable house, unless they have first shown that these monies were employed for purposes pertaining to the venerable house; but let them bring their actions against him who took the money on loan, or against his heirs.

This also we command: that, with the exception of the great church of the royal city, and the venerable orphanage, and the hostels, and the poorhouses existing in the royal city or its territory, it shall be lawful for all the most holy churches and venerable houses, and likewise also the monasteries, situated both in the royal city and in the various provinces, to make exchanges of property among themselves, provided that indemnity is preserved for each venerable house, those consenting to this contract, whether by intervening written instrument or by declarations made before the holy oracles of God, not only the administrators of each venerable house, but also the greater part of those who hold ministry there.

But those things which have come, or shall hereafter come, from the imperial house to any venerable house whatsoever, these we in no way permit to be sold, or pledged, or exchanged, or alienated at all, not even if the venerable houses should do so among themselves. And since we have learned that by some persons alienations of monasteries also are made, to the end that they may be transformed from a consecrated form to a private and profane manner of life, this also we forbid in every way. And if any such thing be found to have been done, we grant license to the most religious bishop of that place to reclaim that monastery and restore it to its former form.

Furthermore, if any of the aforesaid venerable houses, existing either in the royal city or in the provinces, with the exception of the great church of the royal city, possess a property burdened with many public charges, from which no revenue accrues to the venerable house, we grant license to the administrators of that venerable house to alienate such property, in whatever manner they wish, for the benefit of that venerable house: instruments, namely, being drawn up in this alienation before those by whom the administrators of such places are promoted or ordained;

and the prelates of such a venerable house, as well as the greater part of those who perform ministries there, swearing upon the holy Scriptures that the alienation is made neither through betrayal, nor for favor, nor by any kind of fraud, but so that indemnity may be preserved for that venerable house.

And furthermore, to the stewards, and administrators, and registrars of any venerable houses whatsoever, and likewise to their parents and children, and others who are joined to them by kinship or by right of affinity, we forbid, under the same penalties as also in the case of those who are in the royal city, to undertake leases, or emphyteuses, or purchases, or mortgages of immovable property belonging to those venerable houses, whether in their own person or through an interposed person.

But if any tenant farmer or emphyteuta shall have made worse any property which he received, or shall hereafter receive, from goods belonging either to the most holy great church or to another venerable house situated anywhere in the territories of our commonwealth, or for two years shall not have paid the acknowledged and agreed emphyteutic rent, or the rental fee, we grant license to the venerable house by which the lease or emphyteusis was made, both to exact the debts of past time, and the former state and quality of the property leased or given in emphyteusis, and to drive him out from the emphyteusis or lease, he being one who cannot, on the ground of improvements, bring any action against the venerable houses.

But if the administrators of these houses are unwilling to drive him out, we command indeed that there be exacted from him those things which he is known to owe by reason of the lease or emphyteusis. Meanwhile, until the appointed time expires, let him retain the property given to him, if he furnishes what was agreed. But if he defaults, we grant license to the prelates of those venerable houses to assert indemnity for the venerable houses out of his goods, he being unable in this respect either to propose anything concerning the improvements. To the most holy churches of the cities of Odessus and Tomi we permit that they may alienate immovable property for the redemption of captives, unless certain possessions were given to them on this condition, that they be in no wise alienated.

This also we grant, that the most holy Church of Jerusalem may have license to sell houses belonging to it and situated in that holy city itself; but at no lower price than what could be collected from the rents of those same houses over fifty years, so that from their price better revenues may be procured.

Moreover, if any persons shall have donated, or sold, or by any other means furnished or bequeathed barren possessions to any venerable house whatsoever, whether situated in the royal city or in the provinces, we command that the venerable house to which such possession has come shall sustain no loss on account of these properties, nor be burdened on the ground of tributes or for any other cause, but that all that burden shall devolve upon those who gave them or their heirs, they being compelled to take back possessions of this kind, and to restore out of their own patrimony every loss accruing to the venerable house from this cause.

But also if any such fraud follows in this matter, that a certain sum of money be given to the venerable house in place of it, we command that the venerable house keep this also for its gain. But let them restore the barren properties to him who gave them, or in every way to his heirs. Besides this, we command that no necessity be imposed upon the most holy churches, or upon other venerable places, situated both in the royal city and in all the provinces of our commonwealth, to buy barren or fertile possessions situated anywhere, lest by this occasion they be found to encumber even those which they have.

Furthermore, if anyone wishes to take an immovable property by way of use from any of the aforesaid venerable houses (just as we have above provided concerning the venerable houses situated in the royal city), let him not take it otherwise than if he forthwith furnishes to the venerable house from which he takes that property another property, by right of ownership, which shall have as much revenue as the property has that is given to him, and shall not be burdened with heavier public charges; so that after his death, or after the time for which it pleased the granted use to last (not however exceeding the life of the recipient), both properties, in respect of both ownership and usufruct, may come to the same venerable house. And these things indeed we have ordained concerning immovable property.

But concerning the sacred vessels which belong to the same most holy great church of the royal city, or to other oratories situated anywhere in the territories of our commonwealth, we ordain generally that these be not sold or pledged otherwise than for the redemption of captives.

Indeed, if there be several vessels in any one of the said venerable houses which do not furnish a necessary use of themselves, and it should come to pass that such a venerable place be burdened with debt, and there be not at hand other movable goods from which the debt ought to be repaid, we grant them license that, instruments of the acts having been drawn up (as was said above), the vessels which are found to be superfluous they may either sell to other venerable places which have need of them, or melt down, and likewise sell, and apply the price of them to discharging the debt, lest immovable properties be alienated.

If, against those things which are forbidden by the present law of ours, any contract be made in movable property which belongs to any one of the aforesaid venerable houses, not only shall that property, in which any such thing has occurred, be restored to the most holy church or to the venerable house together with the fruits of the intervening time, but also the price, or whatever has been given under the name of a donation to be remunerated, or of an exchange, or of any other cause whatsoever, shall remain with it.

But if an emphyteusis has been carried out against our prohibitions, we command that the property be returned to the most holy churches or venerable places, and besides, that the emphyteutic rent be furnished according to what was agreed, and that the contract be terminated according to the force of the emphyteutic instruments. If an ecclesiastical property, or that of another venerable house, has been donated, both the property itself shall be returned to the same most holy great church, or to other venerable houses, together with the fruits of the intervening time, and also as much again, which by valuation equals that property.

If these things have been given against a pledge, the creditor shall lose both the debt and restore that property to the venerable house, the notaries who shall have presumed to serve such instruments against this law of ours being condemned to perpetual exile. Finally, if anything was done before this law according to the old constitutions, we command that it retain its force in every way. But all things which have been done against the old laws we decree to be overturned; and the properties which were given against their tenor to be restored to the venerable houses. For the rest, we decree that all things be done according to the present law, all other constitutions which were formerly promulgated in cases of this kind being henceforth void.

Those things, therefore, which our tranquillity has sanctioned by the present law, to be valid forever, let Your Excellency be zealous to preserve sacred and inviolate, by edicts to be posted for ten days in the customary and solemn places, yet with no orders being sent into the provinces on account of this matter. For we ourselves will provide how, without harm to the subjects and contributors, this our present general constitution may be made known to all. Given on the seventh day before the Ides of May, at Constantinople, in the consulship of our lord Justinian, Perpetual Augustus, and of Basilius, most honorable man, consul.