Letter 10041: The public games require animals from the provinces, and the provincial governors have been less cooperative than...

It is certain and clear that nothing is so intimately bound up with the laws as your decrees, our Lords the Emperors [the three reigning Augusti]; but the perverse interpretation of those who carry them out, while it favors the petitioners, for the most part corrupts what has been commanded. Your Divinity's late brother [the deified emperor], now received into heaven, had ruled, when Marcianus, formerly protector of Aggarea, had requested the property as though it were ownerless, that, if that inheritance had no appointed or lawful heir, it should pass into the right of the Treasury, as to its owner, free of all claims; and that then, once the extent of the estate had been reported through the rationalis [the imperial finance officer], the petitioner should wait to learn what the sacred clemency might grant him. It is now nearly the second year that, through the defensores and the rationales of the most august House, the heirs are being harassed contrary to the justice of the solemn written oracle [the emperor's ruling]. Although the sixth year is now counted from the reading of the will, the fortunes of the case have most recently run upon the impassable rock of a shameful inquiry. For when, before the most accomplished rationalis Bassianus, the informer of the property was first being preferred in accordance with the sacred enactments, by a fresh effrontery the prescription was trampled underfoot. Then, when the reading published the validity of a will drawn up in proper legal form, an empty calumny was brought forward, namely that the witnesses who sealed it had taken some legacy or other from that same will. There are even adduced imperial rescripts by which the corroborating testimony of a certain man was set aside, who was said to have aided his own cause by his testimony, as though indeed it were a comparable case, or as though the slight honor with which the deceased had sprinkled the subscribers out of friendship could annul a lawful judgment. For if we were to live by these rules, we should more safely employ hostile witnesses as sealers, whose ill will would demand no act of kindness toward the testator. It is painful to say that the legacy of the subscriber amounted to a mere five solidi at most; for to the others there accrued an honorable remembrance rather than any monetary gain. Therefore the succession was either one of the utmost poverty, if so trifling an honor is thought to have wounded the validity of a lawful judgment, or, if the hereditary estate is reckoned more ample, the small sum of the legacy is far removed from any suspicion. Who does not call in his most intimate friends for the sealing, when his final affairs are being arranged? And now, what wonder is it if one set before the testator's eyes should earn some token of devotion, who earned the right to be summoned? I do not tolerate as sealer one to whom a large share of the property is conveyed, for although he is not corrupt in conscience he is nonetheless enriched without untainted modesty; but truly these slight pledges are left either for the sake of affection or out of the testator's sense of decency. Nothing has been taken away from this scruple by new laws; this usage remains, and, so long as you preserve the laws, it will remain forever: one single rationalis, and one alone, has emerged within the memory of the human race who would introduce the precedent of a novel adjudication. From this arose the appeal, which, when by the decree of your own law it had entered the sacred court, was again, for the sake of evading judgment, met by an empty pretext set forth: namely, that the inquiry, having been delegated by the illustrious man, the Count of the Private Estate [comes rei privatae], was said to belong to the examination of the rationalis, and therefore ought once more to be transferred to that same man's tribunal—whereas the entire matter, deriving from the petitions of Marcianus, the former protector, and from the bounty of your Clemency, belonged rather to the sacred court by way of appeal, especially since there had also come into force a recent enactment which, by ancient law, committed appeals of this kind without distinction to the See which guards the place of the emperors. Having therefore examined everything, I pronounced that the property was not liable to the rescript, since the eternal justice of Your Divinity had decreed that the Treasury be admitted only if the inheritance were vacant of appointed or lawful successors, whereas these resources Marcellus, Bizias, and Heliodorus had received by the just will of the deceased. Then the defensor of the venerable House suspended my sentence by an unusual appeal. But although he could allege no precedent in the records of judicial inquiry for such a thing, nonetheless I willingly admitted the objection that was raised, and, having summarily embraced the whole matter in this report, I have appended also the documents of the proceedings, presuming that what I have judged according to the laws and for the good repute of the times will be pleasing to good emperors. [Citations appended in the manuscript tradition: Theodosian Code X.10.8, 9, 12; cf. Theodosian Code II.2; Digest XXII.5; Theodosian Code XI.30.]

Certum atque dilucidnm est, nihil esse tam familiare legibus quam vestra decreta, ddd. imppp., sed executoram prava interpretatio, dum supplicantibus favet, plemmque iussa cormmpit. statuerat receptus in caelum germanus numinis vestri, cum Marcianus 3s dudum protector Aggareae bona tamqnam vacantia postulasset, ut, si ea hereditas scriptum successorem vel legitimum noB haberet, in ius fisci tamquam domino nuda concederet ; tunc insinuato per rationalem patrimonii modo opperiretur petitor, quid ei sacra deferret humanitas. annus fere secundus est, ut per defensores et rationales augustissimae domus contra iustitiam sollemnis oraculi scripti fatigantur heredes. licet iam sextus annus a testamenti recitatione numeretur, novissime fortuna causae inpetibilem scopulum foedae cognitionis incurrit. nam cum apud virum perfectissimum rationalem Bassianum primo delator bonorum secundum sacra scita proJeretur, novo ausu calcata praescriptio est. dehinc cum testamenti iure confecti fidem recitatio publicaret, calumnia inauis obiecta est, quod signatores nescio quid legati ex eadem voluntate cepissent. adduntur etiam rescripta divalia, quibus adstipulatio cuiusdam remota est, qui suam iuvisse causam testimonio diceretur, quasi vero simile esset exemplum aut tenuis honor, quo subscriptores ob amicitiam defunctus adsperserat, legitimum posset abolere iudicium. nam si his legibus viveremus, inimicis signatoribus tutius uteremur, quorum ofl^ensa nihil de testatore humanitatis exigeret. piget dicere in quinque numero solidis potissimum subscriptoris fuisse legatum; ceteris enim magis commemoratio honesta quam pecuniae quaestus accessit. ergo aut extremae paupertatis successio fuit, si putatur exiguus honor fidem legitimi iudicii sauciasse, aut si census hereditarius existimatur uberior. aliena est a suspicionibus brevis summa legati. quis non familiarissimum quemque signandis adhibet, cum extrema conduutur? iam quid mirum est, si in oculis positus mereatur aliquod monumentum religionis, qui meruit advocari/ non fero signatorem, cui pars bonorum magna defertur, nam etsi integra conscientia non tamen sincero pudore ditatur; at vero haec levia pignora aut amoris gratia aut testatoris verecundia relinquuntur. nihil huic religioni novis legibus derogatum est; manet iste usus et vobis iura servantibus semper manebit: unus et solus post humani generis memoriam rationalis emersit, qui exemplum novae iudicationis induceret. hinc orta est provocatio, quae ubi auditorium sacrum decreto etiam vestrae legis intravit, rursus eludendi iudicii causa propositum est inane commentum, ut ab inlustri viro privatae rei coniite delegata cognitio diceretur rationalis examini atque ideo rursus ad eiusdem iudicium debere transferri, cum omnis quaestio ex precibus Marciani dudum protectoris et vestrae clementiae largitate descendens sacro potius auditorio ex provocatione conpeteret, accedente etiam proxima sanctione, quae indiscrete huiusmodi appellationes sedi, quae vicem principum tuetur, prisco iure commisit. examinatis igitur omnibus pronuntiavi bona obnoxia non esse rescripto, cum vestri numinis aetema iustitia, si scriptis aut legitimis successoribus vacaret hereditas, fiscum statuisset admitti, has antem facultates Marcellus Bizias et Heliodoms iusta defuncti voluntate cepissent. tunc sententiam meam defensor venerabilis domus inusitata provocatione suspendit. sed cum huius rei nullum exemplum cognitionalis S extare suggereret, nihilo minus obiectam vocem libenter admisi et relatione summatim cuncta conplexus gestomm quoque documenta subtexui, praesumens bonis placitura principibus, quae secundum leges pro fama tempomm iudicavi. Cod. Theod. X 10, 8. 9. 12. 10 cf. Cod. Theod. H 2. Dig. XXH 5, 10. 31 Cod. Theod. XI 30, 41.