Works & Councils of Toledo 69 part 1/3

The Emperor Justinian Augustus to Peter, the most glorious master of our sacred offices. Concerning the administration and privileges, and other various chapters of those matters which pertain to the most holy churches and other venerable houses, we have already reduced certain points to a fixed form. But at present it has seemed good to embrace, in this law with a correction befitting us, those things which concern the most religious bishops, clergy, and monks, formerly ordained in various constitutions.

For if we are zealous that the civil laws, the power of which God in His love toward men has entrusted to our fidelity, be preserved firm and stable in all things for the security of our subjects, how much more zeal ought we to bestow upon the observance of the sacred canons and divine laws, which were defined and established for the salvation of our souls? For those who observe the sacred canons obtain the help of the Lord God; and those who transgress against these subject themselves to condemnation. But the most religious bishops, to whose fidelity is committed the inquiry and custody of the canons, will be liable to a greater condemnation, if they leave any transgression in these matters unpunished.

Since these sacred canons are not observed, we have received various complaints against clergy and monks, and against some bishops, that they do not order their life according to the sacred canons. Some are even said not to know the very prayers of the sacred oblation and of holy baptism. Revolving therefore the judgment of God in our mind, we have commanded that in each of these matters which have been reported to us, inquiry and correction proceed canonically. For if the general laws do not permit those things which are wrongly admitted by laymen to be left without inquiry and punishment, how should we endure that those things which have been ordered in a regular manner by the holy apostles and fathers for the salvation of faithful men be despised?

Besides, we have discovered that many from this cause have fallen into sins, namely that the synods of the most religious priests are not celebrated according to those things which were prescribed by the holy apostles and holy Fathers. For if this had been observed, each one, revering the rebuke he would undergo in the synod, would surely have been zealous both to learn thoroughly the sacred ministries and to live honorably, lest he be subjected to the condemnation of the sacred canons. But that too gave to very many no small occasion of offending, that bishops and presbyters, and likewise deacons and the rest of the clergy, are ordained without examination and without testimony of right faith and honesty of life.

For if those to whom the business of praying for the people is given are found unworthy of the ministry of God, how shall they be able to appease God for the offenses of the people? But that the ordinations of priests ought to be done with the utmost diligence, Gregory the Theologian, numbered among the saints, teaches us, following the holy apostles and the sacred canons. For thus he says in his great Apologetic: «But who, measuring himself by the rules and prescriptions of Paul, which he made concerning bishops and presbyters, that they should be sober, modest, not given to wine, not strikers, equipped to teach, irreproachable in all things, and having no commerce with the wicked, would not perceive that he differs much from this rectitude of the rules?» And again the same says thus:

«One must first be cleansed, then cleanse; be instructed in wisdom, and so instruct in wisdom; become light, and enlighten; draw near to God, and lead others to God; be holy, and sanctify; lead by the hand, but with hands; give counsel, but with prudence.» And again the same Gregory, numbered among the saints, writes this concerning the same in the same oration: «Who, I beseech, would fashion, as if of clay, in one and the same day, a prelate of the true ministry, who should keep his stations together with the other angels, sing praises to God together with the archangels, and discharge a priestly office together with Christ?» And by these things indeed the Theologian shows of what sort those ought to be who are promoted to the priesthood.

But concerning those who are ordained unworthily, the same says these things in the same oration: «Who, having previously brought nothing into the sacred hive of God, having previously undergone no labor toward attaining that which is beautiful, are at once designated both disciples and masters of piety, and, before they are themselves purged, they purge: yesterday plunderers of holy things, today priests; yesterday strangers to sacred things, today princes of sacred things: veterans in wickedness, recruits in piety, by the benefit of human favor, not of the Spirit.» But that the sacred canons forbid those who have taken a second wife to be clergy, Basil also, numbered among the saints, teaching, thus says: «Those who have repeated marriage, the canon has excluded from the ministry.» And these things indeed says Basil, numbered among the saints.

And so greatly did the holy Fathers exercise care for the priesthood, that those who assembled at Nicaea issued a canon to this effect: «The great synod has forbidden altogether that it be lawful for any bishop, or presbyter, or deacon, or anyone whatsoever constituted in the clergy, to have a woman dwelling with him, except a mother, or aunt, or maternal aunt, or those persons only who escape suspicion.» Following therefore those things which have been defined by the sacred canons, we make a pragmatic law, by which we sanction that, whenever it shall be needful to ordain a bishop, the clergy and the leading men of the city for which the bishop is to be ordained shall assemble together, and, the Gospels being set forth, shall make decrees concerning three persons;

and let each of them swear by the sacred oracles, and let them insert this into the decrees themselves, that it is neither for largess, nor for any promise, nor for friendship or favor, nor any other affection whatsoever, but because they know these persons to be of right and catholic faith, and of honest life, and above the thirty-fifth year of age, that they have chosen them; and that they know none of them to have either a wife or children, or a concubine, nor know them to have had or to have natural children; but if any of them previously had a wife, yet had her alone, and her neither a widow, nor one separated from a husband, nor one forbidden by the sacred canons;

but also that they have not known any of these who has been chosen by the decrees to be bound to the duties of a city council, or to be a cohortalis. Except if one bound to the duties of a city council, or a cohortalis, has, for not less than fifteen years, passed a monastic life in a monastery beyond all reproach: the observance, namely, which was previously stated by us, being kept in the decrees to be made concerning them, and in these persons; so that, of those three persons who are thus chosen by the decrees, the better may be ordained, by the choice and judgment of him who has the right of ordaining. But let the curialis or official who (as has been said) has lived fifteen years in a monastery, and is called to the episcopate, be free from his own condition:

yet so, that, freed from the curia, he may retain for himself a fourth part of his substance, the rest of his property being claimed for the curia and the public treasury according to our law. But we give license to those making the decrees, if they think any of the laymen worthy of the said election, to choose this man together with two other clerics or monks; the more so that, if a layman be thus chosen to the episcopate, he be not ordained bishop suddenly; but first let him be numbered among the clergy for not less than three months, and so, having been thoroughly taught the holy rules and the daily ministry of the church, let him be ordained bishop. For he who ought to teach others should not, after ordination, be taught by others.

But if (as happens) in certain places three persons suitable for such an election are not found, let it be lawful for those making the decrees to make the decree concerning two or one person, all of them, however, having the testimonies stated by us. But if those who ought to elect a bishop do not make those very decrees within six months, then, at the peril of his own soul, let him whom it befits to ordain ordain a bishop, all those other things which we have aforesaid being observed. But let there first be required from him who is to be ordained, by him who ordains, a written statement with his own subscription, which shall comprise an account of his right faith.

Let him also pronounce the sacred oblation which is in the holy communion, and together with the other prayers, also those which are uttered in sacred baptism. Let him, moreover, who is ordained undergo an oath by the holy Scriptures, that neither by himself, nor through any other person, has he given, or promised, or shall hereafter give anything, either to him who ordains him, or to those who made the decrees on his behalf, or to anyone else at all, under the name of conferring the ordination upon him.

If anyone be ordained bishop against the said observance, let him both be cast out of the episcopate in every way, and also let him who has presumed to ordain thus against the rule be separated for one year from the sacred ministry, and let all his substance, which at any time or in any manner has been brought into his ownership, on account of the fault which he committed, be claimed for the ownership of the church of which he is bishop.

But if anyone institute any accusation, for whatever cause, against him who is to be ordained bishop, or presbyter, or deacon, or another cleric, or even the superior of a monastery, which could, according to the laws or canons, hinder his ordination, let such ordination be deferred, and let an examination of the accusation first be interposed, the accuser also being present and pursuing to the end those things which have been laid by him as a charge. Indeed, although the accuser absent himself, or contrive delays, nonetheless even so let him who is about to perform the ordination, within three months, hold a most exact inquiry concerning this matter.

And if indeed he find him who was called into accusation as a charge to be culpable, whether according to the sacred canons or according to our laws, let the ordination be forbidden. But if he appear innocent, let the ordination be carried out, whether the accuser be present or absent. But the accuser, whether being present he do not prove it, or abandon the accusation he instituted, if he be a cleric, let him be expelled from his own grade; if a layman, let him sustain a fitting coercion. But if anyone ordain the accused before the examination, both he who ordained and he who was ordained, each, let him be expelled from the priesthood. But above all things we sanction that this be observed, that no one be ordained bishop through the bestowal of gold or of other things.

If any such thing be committed, both those who give and those who receive, and their mediators, subject themselves to condemnation according to the divine Scriptures and the sacred canons. And therefore both he who gives and he who receives, and the one acting as mediator, shall be removed from the priesthood or clerical honor. But what was given by reason of this cause shall be claimed for that church whose priesthood he wished to purchase. If he who receives by reason of this cause, or who acted as mediator in the affair, be a layman, we command that the things given be exacted from him double, to be claimed, namely, for the church.

But not only do we order those things which have been given in this manner to be reclaimed, but also every security exposed for this in whatever manner, and the obligation of pledges and of a surety, and finally every other action of whatever kind, we sanction to be void. And besides, he who accepted the promise shall not only render back the acknowledged sum, but also as much again as is contained in the acknowledgment shall be exacted, which itself ought to be given to the church.

If, however, any of the bishops, whether before his ordination or after his ordination, shall wish to offer his own goods, or a part of them, to the church whose priesthood he undertook, not only do we not forbid this, and sanction that he be free from all condemnation and penalty of the present law, but we even judge him worthy of all praise, since this is not a purchase, but an offering. But concerning customary dues, we grant that those alone be furnished by those who are ordained bishops, which are comprised in order hereafter in the present law.

We therefore decree that the most blessed archbishops and patriarchs, that is, of elder Rome, of Constantinople, of Alexandria, of Theopolis, and of Jerusalem, if it be customary that less than twenty pounds of gold be given to bishops or clerics at their ordination, are to furnish only that which custom acknowledges. But if more than this was being given before this law, let nothing beyond twenty pounds of gold be furnished. As for metropolitans, who are ordained by their own synod or by the most blessed patriarchs, and likewise all others who are ordained either by patriarchs or by metropolitans, if indeed the church of him who is ordained has in its revenue not less than thirty pounds of gold, let them give for the enthronement fee one hundred solidi;

and to the notaries of the ordaining prelate and to the others who are in his ministry and who customarily receive such, two hundred solidi. But if the church's revenue brings in for the year less than thirty pounds of gold, yet not less than ten, let them give for the enthronement fee two hundred solidi, and to all the others who customarily receive, one hundred solidi. If it should happen that the church's revenue is less than ten, yet not less than five pounds of gold, let them give for the enthronement fee fifty solidi, and to all the others who customarily receive, seventy-five solidi. If it has in revenue less than five, yet not less than three pounds of gold, let them furnish for the enthronement fee eighteen solidi, and to all the others who customarily receive, twenty-four solidi.

If the church's revenue is found to be less than three, yet not less than two pounds, let them give for the enthronement fee three solidi, and for every other customary due, six solidi. For of a church which has in revenue less than two pounds of gold, we grant that the bishop give nothing whatever, neither for enthronement fees nor for any other custom. And these sums which we have appointed to be furnished, the chief presbyter of the ordaining bishop and the archdeacon, receiving them, shall divide among those who customarily receive from him. These things, therefore, we command to be observed in every way, lest by occasions of this kind the churches be burdened with debts and the priesthoods become venal.

Assuredly, if anyone presumes in any manner to take anything beyond the amount defined by us, under the name of enthronement fees or customary dues, we command that whatever excess he has received be recovered threefold from his goods for the church of him who gave it. And these things, then, have been said concerning the ordination of bishops. After ordination, however, we command that bishops be free both from servile and from registered-tenant condition, unless one has been ordained who is a decurion or a member of a cohort contrary to the aforesaid observance. For such men we command to be removed from the episcopate and restored to their curia or cohort, lest from such a condition any reproach arise to the priesthood.

But those who, before this our law, are found to have been ordained bishops from the curial condition, we decree indeed that they be free from such a condition, but that they assign the lawful portion from their goods to the curia and the public treasury. This, to be sure, in such a way that the rights of the church suffer no detriment in the property which, acquired in addition after the episcopate, we have appointed to belong to their church. But if it happen that he who is ordained bishop is under the power of his father, by the very ordination let him become legally independent. Furthermore, we grant that the most God-loving bishops and monks shall by no law be made guardians or curators of any person whatsoever.

But as for presbyters, deacons, and subdeacons, if by the right and law of kinship they are summoned to guardianship or curatorship, we grant that they undertake such a charge, provided, however, that within four months to be reckoned from the time they were summoned, they declare in writing before the competent judge that they have undertaken that charge of their own free will. And if (as is likely) any of them has done this, let him suffer no prejudice thereby with respect to any other guardianship or curatorship.

But we do not grant that a bishop, or a steward, or a cleric or monk of any rank, be a receiver or collector of public contributions, or a lessee of revenues or of others' possessions, or a curator of a household, or a dispenser, or a procurator of a lawsuit, or a surety in these matters, whether he undertake it in his own name or in that of the church or monastery, lest by this cause harm be inflicted on the sacred buildings and the divine ministries be hindered.

Moreover, if any possessions are found to lie adjacent to churches or monasteries, and the dispensers of the venerable houses wish to take them on lease or in emphyteusis, then if all the clerics and monks consent and declare concerning matters of this kind, either in the instrument itself or under the drawing up of records, that this is being done for the benefit of the venerable houses, we grant that they proceed with such a lease or emphyteusis. And to the most holy churches themselves and to the other venerable houses we grant license to conclude leases and emphyteuses among themselves;

and likewise we grant to the clerics that they lease and manage the possessions of their own churches, yet by the judgment of the bishop and the steward, with the exception of those persons whom by another law we have forbidden to do this. If anyone does anything contrary to the aforesaid: if indeed he be a bishop, we decree that all his property which, from whatsoever cause or person, whether before the episcopate or after the episcopate, has come to him, be claimed for his church.

But if it be stewards or other clerics who have offended in this, let a monetary penalty be exacted from them, such as their bishop shall approve, to be claimed for the church; while those who entrusted to them the leasing of revenues or of any possession, or the receiving and discharging of public tributes, or the curatorship of their household, or who accepted them as sureties in the aforementioned matters, shall have no action against the church, or the monastery, or its property, or its dispensers, or even against those persons whose good faith they followed, or their resources, or their sureties.

Nay rather, if any loss accrue to the public treasury, those who entrusted to the aforesaid persons the receiving of public contributions or revenues, or their leasing or discharge, or who accepted them as sureties, shall be compelled to make restitution of this very loss from their own substance. Furthermore, it shall be lawful for none of the magistrates to compel the most God-loving bishops to come forward in court for the sake of giving testimony; but let the judge send to them so that, from among the persons appearing before himself, the bishop may state what he knows, with the holy Gospels set before him, as befits priests. Nor do we grant that a bishop be brought against his will, or be made to appear without an imperial order, before a civil or military magistrate for any pecuniary or criminal cause;

but the magistrate who shall presume to give such a command, whether in writing or without writing, after the stripping of his belt of office shall pay a penalty of twenty pounds of gold, to be given to the church whose bishop was brought forth or ordered to appear; and likewise the officer who executes it, after the stripping of his belt, shall both be subjected to torments and be sent into exile. Moreover, we forbid the most God-loving bishops to desert their own churches and set out for other provinces. But even if some necessity of acting in this way arise, let them not do it otherwise than with letters from their most blessed patriarch or metropolitan, or, that is to say, by imperial command;

with this proviso, to be sure, that not even those bishops who are established under the most blessed archbishop and patriarch of Constantinople may, without his mandate or our command, come to the royal city. But if in such a manner a bishop journeys to any place whatever, let him not leave his church for more than one year. And the bishops who come (as has been said) to the royal city, of whatever diocese they may be, before all things let them approach the most blessed archbishop and patriarch of Constantinople, and thus through him let them enter into our serenity.

But those who, contrary to our ordinance, either journey abroad or tarry elsewhere outside their own church beyond the prescribed term of one year, to these first of all let no expenses be supplied by the stewards of their church; next, let them be summoned by the letters of the priests under whom they are reckoned, that they may return to their own churches. If they delay to return, let them be summoned according to the sacred canons. And unless within the time prescribed by the priests they return to their own churches, these men indeed are to be driven from the episcopate, and others, better men, are to be ordained in their place according to the tenor of the present law. This same rule shall hold also in the case of clerics, of whatever rank or ministry they may be.

But because what has been said by the sacred canons concerning the synods of the most holy bishops, which ought to be held in each province, has hitherto not been observed, it has become most necessary to bring this back again to its right course. And indeed the holy apostles and Fathers defined that twice each year synods of the most religious priests or bishops should be held in every province, and that whatever sprang up should be examined and amended with suitable correction: that is, the one on the fourth day of holy Pentecost, the other in the month of September.

But since through negligence of this kind we have found many entangled in various sins, we command that in every way one synod be held in each province every year, either in the month of July or in September, and that there assemble in one place, in the presence of the most blessed patriarchs, those who are ordained by them and have no right to ordain other bishops; and in the presence of the most religious metropolitans of each province, those who are ordained by them:

so that the more the causes that have been stirred up, and those which are denounced by some, whether on occasion of the faith, or of canonical questions, or of the administration of ecclesiastical affairs, or concerning bishops, or presbyters, or deacons, or other clerics, or concerning the heads of monasteries, or monks, or concerning a blameworthy life, or other matters that require correction, may be agitated, so much the more fittingly may they be examined, and correction be applied to them such as accords with the sacred canons and our laws. But let not only these matters be sought out in the synods to be held every year:

but also as often as anyone—whether of the priests, or of the clerics, or of the heads of monasteries, or of the monks—is accused, whether concerning the faith, or concerning a base life, or because he has done something contrary to the sacred canons. And if indeed he who is accused be a bishop, let his metropolitan examine the things that are brought forward; but if it be a metropolitan, let the most blessed archbishop under whom he is reckoned do so; if a presbyter, or deacon, or other cleric, or head of a monastery, or monk, let the most religious bishop under whom these are reckoned examine the things laid in accusation. And when the truth has been proved, let each one, according to the measure of his offense, be subjected to canonical censures by the judgment of him who undertakes the examination of the cause.

And let all these things obtain not only in those bishops and clerics, and likewise heads of monasteries, who shall be ordained hereafter, but also in those who now exist, if anyone (as it is permitted to surmise) be accused of certain causes forbidden by the sacred canons and our laws. For when these things are thus observed, the laity also will attain great progress toward the right faith and an honorable life, and amendment unto the better. To this we add a command, that all bishops alike and presbyters celebrate the sacred oblation, and the prayers used in holy baptism, not in a low manner, but with a clear voice that may be heard by the faithful people, so that thereby the souls of the hearers may be roused to greater devotion in giving forth the praises of the Lord God.

For thus also the divine Apostle teaches, saying in the first Epistle to the Corinthians: 'For indeed if you bless only in the spirit, how shall he who fills the place of the unlearned say the Amen to your thanksgiving to God, seeing that he does not perceive what you say? You indeed give thanks well, but the other is not edified.' And again in the Epistle to the Romans he says thus: 'For with the heart one believes unto righteousness, but with the mouth confession is made unto salvation.' For these causes, therefore, it is fitting that, among the other prayers and those things which are said in the holy oblation, the words to our Lord Jesus Christ our God, together with the Father and the Holy Spirit, be uttered with a clear voice by the most religious bishops and presbyters:

the most religious priests being aware that, if they neglect any of these things, they will both render an account of them at the terrible judgment of our great God and Saviour Jesus Christ, and we, learning of these matters, will not rest content nor leave them unpunished. And we command also the governors of the provinces, if they see any of the things ordained by us being negligently handled, first indeed to urge the metropolitans and other bishops to hold the aforesaid synods, and to fulfill all the things which by the present law we have prescribed to be done through the synods.

But if they see them causing delay and performing these things too sluggishly, then by a report let them make us more certain concerning the matter, so that the more a fitting correction may proceed from us against those who delay to hold the synods: both the governors themselves and the cohorts that obey them being aware that, if they observe these things too little, they will be subjected to the extreme penalties. Moreover, we forbid the most religious bishops and presbyters, and likewise deacons, and subdeacons, and readers, and any other cleric whatsoever appointed in any venerable order and rank, to play at the gaming-board, or to associate themselves with those using such gaming, or to be spectators, or to approach any spectacle whatsoever for the sake of watching.