文集與托雷多會議 第 38 章

The Emperor Justinian Augustus to Epiphanius, archbishop and patriarch of Constantinople. This one intention we always set before us: whatsoever previously seemed imperfect or confused, both to purge this and to declare it perfect out of imperfect; which, doing also in all legislation, we believe ought to be done also in the alienations which take place concerning sacred things—to embrace them by one law, which may both renew and amend all the prior ones, and add what is lacking, and cut off what is superfluous.

For from Leo of good memory, who after Constantine of pious memory increased dominion among the rest of the emperors by the Christian faith, and established by his writings the honor and discipline of the sacred churches, there is a law concerning ecclesiastical alienations, confined to the most holy great church of this most happy city alone. And we praise very much of this law with all earnestness, and the things therein laid down for God. But because it has not been laid down generally for all, we believe that it too stands in need of some correction.

From Anastasius also, of pious memory, there is a certain law written concerning such matters, neither like the prior one, and altogether having less; for, being diffuse and set forth in scattered places, it nonetheless remained imperfect, in that it looks only to the priesthood and diocese established under the most blessed patriarch of this royal and most happy city, while it has not scrutinized all the other sees—although surely it judges itself worthy of correction—on account of which occasion it indeed corrected some things, but left others unarranged. Wherefore we also ordain that it be void henceforth, as being imperfect, and enclosed within a place, and not existing as a general law among the laws, nor introducing anything diligent.

Amending therefore all these things, we deem that one legislation must be imposed upon the goods of all the most holy churches, hospices, hospitals, monasteries, foundling-homes, old-age homes, and of the whole sacred college, and that this law must be added to the constitution of Leo of pious memory: first indeed setting forth the legislation briefly, and so weaving in all that remains.

Now that law wills that neither the archbishop and patriarch of this most happy city beloved of God, that is, of the most holy great church, nor the steward, should sell, or donate, or otherwise alienate any immovable thing—a house perhaps, or a field, or a tenant-farmer, or rustic slaves, or civil grain-allowances (for these too are to be reckoned among immovables which belong to the most holy great church of Constantinople)—but that not even for any compensation, or any other circumvention whatsoever, should any such thing be done.

And it threatens the buyer indeed with restitution of the thing, so that he restore to the steward of the goods of the most holy church the thing which he himself received, together with all the fruit of the intervening time and other gains, the loss of the prices falling upon him who presumed to receive or acquire any such thing; this also being so established, that what was done against the laws should be placed as if it had not been done from the beginning. But the steward who transgresses these things it bids indeed to give of his own to the most holy church all whatsoever he has gained from that cause, or has inflicted as loss upon the most holy church.

Beyond this, it also excludes the steward from his office, and gives an action to the most holy church, not only against the stewards beloved of God, but also against their successors, whether they themselves alienated these things, or, seeing the bishop beloved of God or some other of the clerics alienating, suffered it with degenerate and illiberal silence—and much more, if, when they saw it, consenting, they permitted any such thing, and did not forbid it. To these things, moreover, it also hands over to perpetual exile the notary who drew up such instruments, granting him no clemency, not even by way of return.

Even the highest judges, who give access to these things, and minister to such causes, or suffer records to be drawn up before themselves for the confirmation of such donations or other acts, it threatens to deprive of their belt of office, and dignity, and substance. Therefore, vehemently rebuking these things, it permits the use of an ecclesiastical thing, or what is called usufruct, under some fixed time, or even...

...for the lifetime of the recipient, to be given by the most holy great church—under this definition, however, that he who has received this munificence should recompense to the most holy great church, by right of ownership, a thing of equal quantity, from which the most holy church may have the same revenue as much as he received from the use—after the death, of course, of the recipient, or the defined time having elapsed; the use and usufruct of the ecclesiastical thing given, that is, returning to the most holy great church, and likewise the use of the thing donated being claimed, together with its ownership, for the most holy church; for the law lays it down that such a contract is without peril.

But if that which is given in recompense to the church be of less value than what is given by the most holy church—the church being one which will indeed presently receive ownership of it, but also hopes to receive the use—it deems the contract invalid and as not done, and gives license of reclamation, inasmuch as the circumvention was made against the right of the most holy church. The law therefore decrees such things in brief, and imposes a fine, and stands solely up to the goods of the most holy great church; and although it removes every circumvention which we have aforesaid, it has nevertheless not been able to restrain the cunning of those rising up afterward. For certain men long ago devised what is called the 'colonary right' (now the colonary right is, as it were: if a house worth a hundred solidi, and yielding...

...a rent of ten solidi, someone receives it from the church, and gives for it a hundred solidi, or more, or even less, and as if now from his own burdens himself to give each year, as if by way of rent, three solidi; and it is called parochial. But that house under so small a rent they and their heirs would possess in perpetuity)—devising this, known neither by our laws nor by anyone at all, they contrived no small circumvention against the law, excogitating almost perpetual alienations.

This we forbid to be done henceforth, and concerning this very thing we have written a law. But long ago they also looked to emphyteusis, and diminished a very great amount of the true revenue for those who receive the emphyteusis—those who indeed presided over the goods of the most holy great church furnishing it. And therefore, in a certain one of our constitutions, we indeed define that emphyteusis be made up to three persons—the recipient, and two other successors—permitting this also to be done concerning the goods of the most holy great church; but ordaining that those receiving emphyteusis not be relieved on account of fortuitous events beyond a sixth part.

But because we have learned that documents are so lavishly and impiously made by some, that not even a known portion is left to the most holy church, all the rest being given to those who receive the emphyteusis—and moreover Anastasius of pious memory, ordaining that records of documents be made concerning alienations, so that the time of this matter too might be added, and establishing emphyteusis: without records indeed only up to the lifetime of the recipient of the emphyteusis, but with records extending it in perpetuity—made the law neither perfect nor useful, and on every side imperfect, establishing his legislation only up to the diocese of the patriarchal see of this most happy city (as we have aforesaid).

We therefore (for now we must come to the law) ordain that neither the great church of this most happy city beloved of God, nor the churches established under it, whose distribution it has undertaken (as Anastasius of pious memory interpreted it), nor all the other churches existing in this most happy city, or about its confines, nor those established under the patriarchal see of this most happy city, whose metropolitans it ordains, nor any other anywhere whatsoever, whether patriarch or bishop (we mean those in the East, and those in Illyricum, and moreover in Egypt, and Lycaonia, and in Lycia, and those in the African province, and, to speak briefly, throughout all the lands of our...

...dominion's lands, and also those who are in the West, the bishops beloved of God, of the most holy orthodox churches situated from elder Rome itself up to the Ocean)—nor any hospice-keeper, or poorhouse-keeper, or hospital-keeper, or orphanage-keeper, or foundling-home-keeper, or old-age-home-keeper, or abbot or abbess of monasteries (of men or of women), or anyone whatsoever presiding over venerable colleges, shall have license to alienate an immovable thing, whether consisting in houses, or in fields, or in gardens, or in anything whatsoever of this kind, nor rustic slaves, nor a civil grain-allowance, nor to hand it over to creditors by occasion of a special pledge.

But we have set the term 'alienation' more generally for this reason: that we may forbid both sale, and donation, and reckoning, and emphyteusis extended in perpetuity, which does not consist far from alienation; but we forbid all priests everywhere from alienation of this kind, they being subject to the penalties which the constitution of Leo of pious memory employed: for we ordain that it be valid and ratified in all things. Moreover, we have set forth and brought out, and written this law, not in the paternal tongue, but in this common and Greek tongue, so that it may be known to all on account of easy interpretation. What therefore has already passed, we leave alone. For to stir up anew documents made so long ago from this time would be of much evasion.

Wherefore, those things which up to now still exist, let them have their own validity; but henceforth we interdict all alienation, imposing upon them the aforesaid penalties. But so that the law may endure for the variety of human affairs, and, accommodated to that which always comes, may in all things remain unmoved (for what among men can be stable and immovable, so as to suffer no change, since our whole estate consists under perpetual motion?)—we have deemed it necessary to give certain exceptions to the law, discovered with much vigilance and subtlety, so that the law, having these as a help, may in no way be moved.

We therefore permit the imperial power, if there be any common advantage, and a cause looking to the utility of the commonwealth, and demanding such a possession of some immovable thing as we have proposed, to be allowed to receive this from the most holy churches and the rest of the venerable houses and colleges—the sacred houses being on every side preserved from loss, a recompense being made to them by him who received, equal or even greater than what was given. For what should the emperor plead, that he should not give better things, to whom God has given to have very much, and to be lord of many, and so that he can easily give, and especially in the case of the most holy churches, in which all the immensity of the things donated to them is the best measure?

Whence, if any such thing be done, and a pragmatic form proceed, ordering the imperial power to give some of such things, and it presently recompense a thing better, and richer, and more useful, let that exchange be firm, and let those who preside over the houses, whose is the thing that is alienated, and who administer such writings, be on every side without complaint, fearing none of the penalties which are threatened by Leo of pious memory and have been confirmed by us. Especially since priesthood and empire do not much differ from one another, nor sacred things from common and public ones, seeing that the abundance and estate of all things for the most holy churches is perpetually furnished out of the imperial bounties.

Therefore, when they recompense one another with the things that are fitting, they shall not justly be blamed by any. But every other alienation, whether made to the imperial power itself, or to any other person whatsoever, whether a sale or a perpetual emphyteusis, we altogether abolish. Nor do we permit a donation, or an exchange, or the giving of any pledge in an immovable thing to be made by occasion of loans. And we will these things to be valid in every church, and every monastery, and hospital, and hospice, and foundling-home, and ascetic house, and old-age home, and absolutely every college which a pious act has established—none of these being at all able to receive anything from them.

Hence there will be no further need of the constitution of Anastasius of divine memory, nor are the decrees of the said observance to be made according to it. For by destroying the very beginnings of the matter and forbidding what is being done, we shall hereafter have no need of any investigation. But we permit emphyteusis to be granted, whether in the most holy Great Church or in all the other venerable houses, both to the person of the recipient and thereafter to two heirs of that same person — only to sons alone, whether male or female, or to grandchildren of either sex, or to a wife, or to a husband, provided indeed that this concerning a wife or husband be expressly named;

otherwise it shall not pass to any other heir, but the matter must stand only for the whole lifetime of those who receive it, unless they shall have had sons or grandsons. But otherwise we by no means permit emphyteusis of any ecclesiastical or charitable immovable property, or of a rural slave, or of a civic grain-allowance, to be carried on in any way, nor do we allow what is so done to have any force whatsoever.

But whereas the constitution of Leo of pious memory decreed that ecclesiastical property be given under no diminution whatever, while we in another constitution written by us decreed that in the matter of emphyteusis only a known [diminution] be exempted, we lay down a certain order of diminution of the property of this kind: that the rent of the things given be examined with all truthfulness and exactness, whether it be as great as it was from the beginning, when it came to the most holy Church, and that the emphyteusis be granted to such persons as we said a little before. For then we grant that a sixth part be reckoned with scrupulous care.

But if it happens that the rent is diminished through some calamity, then either let him who wishes to undertake the emphyteusis receive it at the full standing rent, or let him entirely abstain from it, since it is more lawful to lease it out than to carry on such diminutions in an emphyteusis.

But if the emphyteusis of some ecclesiastical suburban estate is granted — such as we know exist in great number, especially in this most fortunate city, indeed worthy of a high price yet yielding small rents, or yielding nothing at all — the emphyteusis shall not be measured by its revenues, but the suburban estate shall be carefully appraised, and from the price thus reached the possible revenues over twenty years shall be reckoned; and upon the revenues computed in this manner the emphyteusis shall be carried out — not in perpetuity, but for the one who receives it and two successions from him, to be made (as we have said before) both to husband and wife.

But the holders of emphyteusis should know that, if for two continuous years they fail to pay the emphyteutic canon (for we set this period in place of the three years allowed to other men, as sufficing for forfeiture in the case of ecclesiastical or charitable emphyteuses on account of an unpaid canon), they shall become wholly strangers to the emphyteusis, and the superiors of the holy houses shall be permitted, if they so wish, to reclaim the estates or houses, fearing no claim for improvements.

But if he who has received the emphyteusis has made the estate, or the suburban property, or the house worse, he is to be compelled at his own expense to use diligence and to restore the former condition; and both he himself, and his heirs, and his successors, and his property are bound to this; and moreover all the revenues due are to be exacted without delay.

But what we have said — that no alienation of any ecclesiastical or charitable immovable property be permitted — we ordain shall be valid against no person of our commonwealth, not only with regard to standing houses, suburban estates, gardens and fields, but also with regard to ruins (whether the ruin be from fire, or from earthquake, or from any cause whatever), and to those things that have been wholly destroyed and lie in their pavement, or even to bare ruins having no building, nor any material lying about. For in those we do not permit any alienation to be made, except in temporary emphyteusis alone, according to what we said a little before, and upon three such persons as we mentioned earlier.

And so that no fraud against ecclesiastical property may occur in such matters: with two leading mechanics or architects of the time being present — or, in this royal and greatest city, together with the God-beloved stewards and five most reverend presbyters and two deacons, the God-beloved bishop also being present; or in a province with two distinguished mechanics or architects, or even one (if the city has only one) intervening in those places, the sacrosanct Gospels being set forth — let it be determined by the architects how much it is fitting to be paid for this to the most holy Church according to the measure of the emphyteusis; and under these conditions let the emphyteutic deed be executed upon it according to the form previously stated:

and let that man both build and use the materials (if he has materials), and let him transmit the emphyteusis up to two successions (as has been said), and so let it revert, after the death of the three persons, to the most holy Church or venerable house from which the emphyteusis was made; and let such a contract be valid, inasmuch as it does not conflict with the present law. Nor must that which until now was done against such contracts be allowed to stand concerning addition — namely, that if the term of two heirs be completed, those who come after them should have license to give in emphyteusis the thing in question, and that they should always be preferred to others.

For this is nothing other than, through perpetual revolutions and contrivances, to carry on emphyteuses for them — or rather deprivations of ecclesiastical properties. But even if any such thing has been done, there is no obligation upon the most reverend stewards, when the two heirs have ceased, to hand it over to the rest.

But if anyone wishes to receive ecclesiastical property of the most holy Great Church, or of any other church, or of charitable institutions situated anywhere in our whole dominion, by way of usus or what is called ususfructus (use or usufruct), let him receive this entirely according to the aforesaid observance and according to the form of the constitution of Leo of pious memory: namely, that being himself wealthy and the owner of immovable substance, he straightway compensate the most holy Church or venerable house from which he received this with another property by right of ownership, bringing in as great and as good revenues as those that the thing given has; so that thus, after his death, the ecclesiastical or charitable property may revert to the venerable house together with the use that was granted, not exceeding the lifetime of the recipient; and likewise let him receive the use of the property given in compensation, in such wise that after the death of the recipient, or the time for which the grant of use was agreed (not exceeding, that is, the recipient's life), both — according to ownership and according to use — shall remain with the most holy Church.

But whereas the constitution of Leo of pious memory decreed penalties almost solely against sales, while we have forbidden not only sales but also donations, exchanges, perpetual emphyteuses, and the giving of immovable property as pledge — and we see certain men so constituted as lovers of danger that they presume to approach the things that are forbidden and to commit a circumvention of the laws out of the will and presumption they have, things forbidden in every way and that perhaps lead to death the men who do them — for this reason we have judged it necessary to establish a definite penalty in each contract as well.

These penalties, namely, which were imposed against stewards by the aforesaid constitution of Leo of pious memory, now likewise hang over the steward, or the warden of a guest-house, or of a hospital, or of a foundling-home, or the abbot, or the abbess of a monastery or of a convent, according to what was previously laid down.

If, therefore, anyone presumes to buy ecclesiastical or charitable property, let him straightway forfeit the price, and let the thing he received be exacted back from him together with all increase of the intervening time; and against the most holy Church indeed, or the venerable house, let him have no action whatsoever, but against the venerable stewards, or those who sold at all, let them have an action upon the contract against their own personal substance, so that even if not for fear of God, yet through fear for their own substance they may become slower about selling.

But if anyone presumes to receive ecclesiastical or charitable property by way of donation, let him forfeit entirely the very thing that was given, and let him repay as much again from his own substance to the most holy Church or venerable house from which he received this; so that, since it is in such men's nature to bring against it this novelty, exercising their malice, he may himself feel it in his own goods.

But if an exchange is made in the case of certain persons — apart from the sovereign power alone, as we said before — let him too who received the exchange be subject to the penalty and lose the thing given to him, and let this thing return again to the venerable house from which it came forth; and let what he gave in compensation remain with the venerable house; and let him who approached a cause contrary to the law forfeit both justly, and on this account be subjected to the penalty whereby he both forfeits his own and does not acquire what he hoped for — here too the action being reserved to him against the personal substance of those who concluded the contract with him.

But if a creditor, by way of a corporeal pledge, chooses to receive immovable ecclesiastical or charitable property — perchance in houses, or suburban estates, or fields, or gardens, or civic loaves, or rural slaves — and has given gold, from this the creditor shall forfeit, and the most holy Church or venerable house that received the loan shall keep the loaned gold as gain; here too the action remaining to the creditor against the steward who contracted the loan, or the warden of a guest-house, or of a foundling-home, or the head of a monastery or convent, or of other venerable colleges — all these provisions being valid also in the case of the abbesses of women's convents or monasteries.

For if there is altogether need of a loan for the most holy churches or other venerable houses — and that perchance for some necessary and unavoidable occasion, without which what presses cannot be fulfilled, or for some other most useful cause subsisting for the most holy Church — it shall be permitted to their superiors to stand up to a general hypothec, and to furnish the creditors no special pledge. But if anyone presumes to receive even a perpetual emphyteusis, which is not lawful, or indeed a temporary one but not according to the observance of this our law, even thus let him forfeit the emphyteusis, and let what was given remain with the venerable house.

Moreover he shall be bound, even after the forfeiture of the emphyteusis, to pay forthwith as much as he would have been going to pay if he had undertaken the emphyteusis according to the law, nothing remaining with him out of the goods of the poor that were given in vain through emphyteusis. Let all these things therefore be observed, subject to the aforesaid penalties — the notaries also not presuming to render service to such instruments, but rather dreading exile from which they may never return, not even if a sacred rescript should grant this; nor the judges presuming either to dictate such instruments, or to receive them when made and to confirm them in the public registers of records — lest they too suffer the loss of belt and dignity and substance according to the constitution of Leo.

The same penalties are to be observed also against those who, contrary to our law, either give sacred vessels in pledge, or sell them, or melt them down for the purpose of alienation. For we ordain that they too are worthy of an equal or greater penalty, since they have presumed to act impiously even with regard to sacred things dedicated to God — unless, however, something be done in secret of that which we have spoken concerning the redemption of captives, where the souls of men are freed from deaths and bonds by the sale of inanimate vessels.

The like observance is plainly to be kept also concerning the alienation of civic loaves, as we have often said, inasmuch as we have learned that such loaves exist not only in this most fortunate city but also in great Alexandria and in Theopolis; and perchance some such thing exists also in certain other provinces. Hence, even if elsewhere too some such possession exists, let the law be observed in it also and extend its observance there.

But whereas it is likely that someone may attempt, even in circumvention of this law, to receive pragmatic sacred rescripts permitting them to do some such thing, this too we forbid, in every person greater or lesser, whether one constituted in office, or of those who are around us, or any of the others dwelling among the peoples. And we ordain that no one whatsoever have license to bring forth any such pragmatic decree, nor from this to receive any profit out of the most holy churches, or out of monasteries or charitable houses, or other venerable colleges, of immovable property.

And the most glorious quaestor is threatened with a penalty of a hundred pounds of gold if he should dictate any such thing; and likewise the most glorious judges, or any others who receive the registration of any such sacred rescript, are threatened with the same penalty; and the notaries are subject to the constitution of Leo of pious memory if they draw up any such instrument; and the God-beloved bishops, or the venerable stewards, may without peril refuse such sacred pragmatic rescripts — or rather receive and recognize them at their peril, since they will undergo danger concerning the very priesthood if, neglecting these laws, they follow such pragmatic rescripts as are thus made.

For it is fitting that those things which are sanctioned in common and generally for the benefit of all should rather prevail than those which are sought to be done in the interest of certain persons to the corruption of the common laws. These things only, namely, are to be leased and given in emphyteusis — whatever they think needs some such thing. If, however, the God-beloved stewards, or the heads of other colleges, wish to have certain things under their own management, it shall be lawful for none of those who are in power — not even according to a sacred pragmatic rescript — to compel them either by lease or by emphyteusis to hand these over to him who does this; and he shall be subject to the penalty of sacrilege and to all the fines and punishments contained in this our sacred law.

But whereas we have come to know that a most wicked offense has been committed both among the Alexandrians and the Egyptians, and now also in certain other places of the empire — that some presume to sell, or exchange, or donate the very venerable monasteries in which an altar has been set up and the sacred ministry has been performed, such as it is customary to celebrate in the most holy churches (the sacred Scriptures, namely, being read, and the sacrosanct and ineffable Communion administered, and monastic habitation established there), so that these things are changed from their sacred and God-beloved character to a private dwelling and condition — we forbid these things henceforth to be done at all, permitting no man to commit them; but we declare the deed void by all means, and we impose the forfeiture of the prices upon the recipients, and we condemn the seller also with the loss of the property and the loss of the price, granting this to the most holy church of that place and to the venerable monasteries, so that they themselves may see to it that what has been wrongly alienated be recalled again to its monastic character; nor shall any hypothec upon these things be valid, but it too shall be annulled and the place again assigned to the sacred monastery.

But just as we forbid harmful alienations, so too we prohibit harmful acquisitions. For many disputes have been stirred up among us, where certain persons have donated less suitable estates to the most holy churches, or to venerable houses, or have even sold them as suitable, although they were utterly barren from the beginning, and on this account did harm to the venerable houses.

We forbid, therefore, the rectors of venerable houses to do any such thing, or at least to acknowledge it knowingly; for if they make contracts not with all exactness, but some barren or harmful possession is given to churches, or monasteries, or guest-houses, or hospitals, or other venerable colleges, the contract shall be held as not made, and he who gives shall entirely recover what was given through circumvention and deceit. But the steward who has done any such thing, or the abbot, or the warden of a guest-house, or the hospital-keeper, or the keeper of a poor-house, or of an orphanage, or of a home for the aged, shall make good out of his own the loss arising from this to the one who gave.

But if the matter were so contrived that some gold also be given for this, then indeed the venerable house which received some barren thing shall keep this as gain. But he who gave the gold shall have an action on this account against him who concluded the contract, as we said before.

Let this be by all means our law laid down concerning the alienation of ecclesiastical or charitable property, following indeed the constitution of Leo of pious memory, and not caring for one thing while leaving another uncared for, but let it be extended over every land which the law of the Romans and the sanction of the catholic Church embraces, and let it determine what belongs to it, and let it be valid forever — guarded by the most holy patriarchs of each diocese, and by the God-beloved metropolitans, and by the other bishops, and by the clergy,

and by the stewards, and abbots, and wardens of guest-houses, and hospital-keepers, and foundling-home keepers, and keepers of homes for the aged, and orphanage-keepers, and all the rectors likewise of any holy colleges — imposing upon all their proper force, and granting license to whoever wishes to denounce the things that are wrongly committed. For such a one is praiseworthy, and will escape the name of slanderer, who refutes a cause carried out against the laws, becoming an author of piety and of benefit to the sacred houses.

Moreover, our commonwealth's judges, both greater and lesser, civil and military, shall nonetheless observe it — and especially the most glorious prefects of the sacred praetoria established throughout all dioceses, and those holding the middle administrations which they call 'spectabiles' (we mean the Augustal and proconsular [governors], and the spectabilis Count of the East), and others, and the magistrates who come after them — that is, the consulars or presides established over the provinces, and the defenders of the cities — and in short let every civil, military, and public authority observe this our law as laid down for the common benefit and for the piety of the whole earth, and let it subject the transgressors to the penalties which we mentioned at the outset.

But if we have sanctioned anything concerning the leases of ecclesiastical property, or in other chapters, or anything has been sanctioned by our predecessors, let this remain in its own firmness, nor [be undone] by the present sacred constitution of ours...... for we allow all else to remain within its own bounds, unless indeed it touch upon any of those things which we here ordain. May this law suffice for all, beyond what was made by Leo of pious memory, to remove every occasion of alienation against charitable property. Let your Beatitude, therefore, and those who shall be after you in the pontifical seats, hasten to carry into effect and execution the things that have been arranged by us. Given on the eighteenth day before the Kalends of May, Belisarius the most distinguished man being consul.