ENACTMENTS OF JUSTINIAN.
|~ Book XXV ~|
( S. P. Scott, The Civil Law, VI, Cincinnati, 1932 ).
1. Ulpianus, On Sabinus, Book XXXIX.
Expenses are either necessary, useful, or incurred for purposes of pleasure.
(1) Those expenses are called necessary which are made through necessity. Where, however, no necessity exists, they come under another head.
(2) With reference to necessary expenses, it must be remembered that they only decrease the dowry when they are incurred on account of it. When, however, they are not incurred with reference to the dowry, they cannot be taken out of it.
(3) Labeo says that dikes built in the sea or river come under the head of necessary expenses. Where a mill or a granary, which is required, is built, it should be included among necessary expenses. Hence Falcinius says that if the husband should rebuild a house which was useful to his wife, and which was falling into ruin; or if he should replant an olive-orchard, where the trees had blown down; or if he should enter into a stipulation providing against the occurrence of threatened injury:
2. Paulus, On Sabinus, Book VII.
Or should expend money for the cure of slaves who are ill;
3. Ulpianus, On Sabinus, Book XXXVI.
Or if he should plant vines, or takes care of trees or nurseries for the benefit of the land, he will be held to have incurred necessary expenses.
(1) Generally speaking, we make a distinction, and in fact there is much difference where expenses are incurred to the permanent advantage of the land, and where this is done only for the present time, or on account of the crop for the present year. In the latter instance, the expenses ought to be set off against the crop, but where they have not been incurred temporarily, they should be reckoned among those that are necessary.
4. Paulus, On the Edict, Book XXXVI.
Upon the whole the judge shall hold the husband responsible for whatever was omitted by him, to the extent that it was to the interest of his wife to have such expenses incurred, as they are included in those that are necessary, but with this difference, namely: an account of the expenses will be allowed, if the property has not been preserved, and he will not be responsible where they were not incurred, unless the property was destroyed in consequence. Therefore, if he should support a house which is about to fall, and it is burned, he can recover the expenses; but if he did not do this, and the house should be burned, he will not be liable for anything.
5. Ulpianus, On Sabinus, Book XXXVI.
Where it is stated that necessary expenses diminish the dowry, this (as Pomponius says) must be understood to mean not that the property itself is actually diminished, as for instance, land or any other dotal property, for it is absurd to hold that any diminution of the same can occur on account of money expended; but it signifies that the said property ceases to become dotal either wholly, or in part. Hence the husband will remain in possession of it until his claim is satisfied, for no diminution of the same is effected, by operation of law, but merely a diminution of the dowry takes place. When, therefore, shall we admit that a diminution of the dowry occurs by operation of law? This will be the case where the dowry consists of other property than money, for it is reasonable to admit that a diminution of money can take place. Hence, if certain property, after being appraised, is given by way of dowry, the dowry will be diminished by operation of law to the amount of the necessary expenses incurred. This is said to be applicable to expenses incurred with reference to the dowry itself, but if they are made with reference to other matters they do not diminish the dowry.
(1) Where the wife pays such necessary expenses, can we say that the dowry is increased, or should it be held to remain unimpaired? Where the dowry consists of money, I have no doubt that it should be held to have increased.
(2) Where the entire dowry is paid without any account having been taken of expenses, it must be considered whether the amount which it is customary to set off against necessary expenses can be recovered by a personal action. Marcellus holds that there is ground for such action, and although many authorities deny that this is the case, still, on account of equity, the opinion of Marcellus should be upheld.
(3) Useful expenses are those which the husband incurs for the benefit of the property, and which improve the property of the wife, that is to say, her dowry.
6. Paulus, On Sabinus, Book VII.
For instance, where a new plantation is made on the land, or where the husband adds a bakery or a shop to the house, or teaches the slaves some trade.
7. Ulpianus, On Sabinus, Book XXXVI.
Expenses for the purpose of pleasure are those which the husband incurs to that end, and which are an ornament to the property.
(1) Such expenses do not diminish the dowry by operation of law, as those which are useful do, nevertheless, they can be demanded.
8. Paulus, On Sabinus, Book VII.
Certain authorities hold that a deduction should be made on the ground of useful expenses only where they are incurred with the consent of the wife; for it would be unjust for her to be compelled to sell the property in order to pay the expenses incurred with reference to it, if she is unable to meet them otherwise. This opinion is based upon the highest principles of justice.
9. Ulpianus, On Sabinus, Book XXXVI.
The husband is permitted to demand from his wife expenses incurred for pleasure, if she does not permit him to remove what caused them. For, if the wife desires to retain such improvements, she should refund the amount expended by her husband; or if she does not wish to retain them, she should permit him to remove them, provided they admit of separation. If, however, they cannot be separated, they should be left; for the husband is not allowed to take away any ornaments which he has added to the property, unless by doing so he can make them his own.
10. Paulus, On the Edict, Book XXXVI.
If the property on account of which the expenses were incurred is for sale, such expenses are not classed under the head of pleasure, but of utility.
11. Ulpianus, On Sabinus, Book XXXVI.
Aristo, however, says with reference to expenses incurred for pleasure, that the husband cannot demand them, even if they have been made with the consent of his wife.
(1) Sabinus very properly holds that gifts which are prohibited between husband and wife also extend to expenses incurred on account of the dowry.
12. Paulus, On Sabinus, Book VII.
A judge should not pay any attention to moderate expenses incurred for the purpose of building houses, or for planting and cultivating vines, or for the treatment of slaves who are ill; otherwise a judicial decision would rather seem to have reference to the transaction of business than to matters connected with the dowry.
13. The Same, Abridgments, Book VII.
A husband cannot collect from his wife any tax or tribute paid on account of dotal lands, for these charges should be paid out of the crops.
14. Ulpianus, Rules, Book V.
Necessary expenses are those through which the dowry is diminished, as, for instance, those incurred for the building of dikes, the diversion of streams, the supporting and repairing of old houses, and the replacing of trees where others have died.
(1) Useful expenses are, for example, such as placing cattle in fields for the purpose of manuring them.
(2) Expenses incurred for pleasure are, for instance, the construction of baths.
15. Neratius, Parchments, Book II.
Where it is stated that necessary expenses incurred with reference to dotal property diminish the dowry, this must be understood to mean where anything is expended on such property over and above what is necessary for its preservation, that is to say, for its benefit. For a man should preserve dotal property at his own expense; otherwise, provisions furnished to dotal slaves, and any moderate repairs of buildings, or even the cultivation of the soil, would diminish the dowry; for all these things are included under the head of necessary expenses. The property itself, however, is understood to yield a certain income, so that you appear not to have expended money upon it, but, after having deducted the expenses, you have received a smaller return therefrom. It is not easy, generally speaking, to decide in accordance with this distinction what expenses should be deducted from the dowry, but they can be estimated in detail according to their nature and amount.
16. The Same, Parchments, Book VI.
by all means, any expenses incurred by the husband in harvesting the
crops must be paid by him out of his own purse, even though these
expenses may have been incurred for the purpose of cultivating the
land; and therefore not only those made in gathering the crops are
included but also such as are necessary for preserving the property
itself, and the husband is entitled to no deduction from the dowry
on this account.
The action having reference to property which has been removed is a peculiar one, and is brought against a woman who was formerly the wife of the plaintiff, for it was not held to be advisable that an action for theft should be brought against her; and certain authorities, like Nerva and Cassius, have thought that she did not commit a theft, because the partnership of married life rendered her, to a certain extent, the owner of the property in question. Others, such as Sabinus and Proculus, hold that she does, in fact, commit a theft, just as a daughter can steal from her father, but that no action for theft is established by law. Julianus very properly adopts this opinion.
2. Gaius, On the Work Entitled, The Edict of the Praetor; Title, Decisions.
For, on account of the honor attaching to marriage, an action against the wife implying infamy is refused.
3. Paulus, On Sabinus, Book VII.
Therefore, if, after a divorce a woman should appropriate the same property, she will also be liable for theft.
(1) Moreover, we can bring an action for theft against a woman where her slave has committed the theft.
(2) It is also possible to bring an action for theft against a woman, if we should become the heir to the party from whom the property was stolen, or if she had stolen from us before we married her. Still, on account of the respect due to persons under such circumstances, in both cases, we hold that only an action for theft to recover the property will lie, and not a penal one based on that offence.
(3) It is also true, as Ofilius says, that all property which the woman has consumed, sold, donated, or used up in any way whatsoever, at the time of the divorce, should also be included in the suit for property appropriated by her.
(4) Where a daughter under paternal control fraudulently appropriates property, Mela and Fulcinius say that an action de peculio should be granted, because it was not considered advisable that she should be liable for theft, or that an action should be brought against her on the ground of property wrongfully appropriated. If, however, a father, together with his daughter, brings an action on dowry, an action should not be granted him, unless he gives security to defend his daughter for the entire amount, in a suit for property improperly appropriated. But where the daughter is dead, Proculus says that an action should not be granted against the father, on the ground of property wrongfully appropriated, unless to the extent that he has been pecuniarily benefited by the transaction,
4. Pomponius, On Sabinus, Book XVI.
Or where he has been guilty of fraud in order to prevent the property from coming into his possession.
5. Papinianus, Questions, Book XI.
All equitable actions to recover property wrongfully appropriated, which has come into his hands, can be brought against the father even during the lifetime of his daughter.
6. Paulus, On Sabinus, Book VII.
Atilicinus and Fulcinius say that this action can be granted to a father-in-law against his daughter-in-law.
(1) Whenever a dowry is given to a son under paternal control, the father-in-law cannot bring an action for theft, where property has been appropriated by reason of a divorce.
(2) This action for property wrongfully appropriated is also granted against the husband if he is a son under paternal control, but shall such an action be granted directly against him, or merely with reference to the peculium? We repeat here the same rule which we have already stated applies to a daughter under paternal control.
(3) If the husband should die after the divorce, his heir can bring the action for the recovery of property fraudulently appropriated.
(4) The heir of the woman is also liable in an action of this kind, just as he would be in one for the recovery of stolen property.
(5) Where the marriage is dissolved by the death of the husband, his heir can recover the property either by an action for the partition of the estate, or by one for its production in court. Aristo thinks very properly that he can bring a personal action for restitution against the woman, because the property is unjustly in her possession.
(6) Where a woman appropriates property after the death of her husband, she does not commit theft, because a theft of property belonging to an estate which is not yet in the possession of anyone cannot be committed; and therefore the heir can bring suit to recover the property, or can file a petition claiming the estate.
7. Ulpianus, On Sabinus, Book XXXVI.
A wife is entitled to an action against her husband for the recovery of property fraudulently appropriated, and she can set off the claim in her action against that made by the husband, where he brings suit for the same cause.
8. Pomponius, On Sabinus, Book XVI.
If, when the dowry is paid to the wife or security is given to insure its payment, it should not be stated that the husband shall have a right to bring an action for the recovery of property wrongfully appropriated, he can, nevertheless, bring such an action; for he has a right to do so even where there is no dowry to be returned.
(1) Sabinus says that if a wife does not return the property which she has wrongfully appropriated, judgment shall be rendered against her for the amount which her husband will swear to in court.
9. Paulus, On the Edict, Book LVII.
For it is not just that the husband should be compelled to sell his own property, even for its full value, if he is unwilling to do so.
10. Pomponius, On Sabinus, Book XXXVI.
Therefore, he should not be obliged to furnish any guarantee against eviction, because the affair took place through the obstinacy of his wife.
11. Ulpianus, On the Edict, Book XXXIII.
Marcellus stated in the Eighth Book of the Digest that whether a husband drove his wife, or a wife her husband, from the house, and removed the property, either would be liable to an action for the recovery of property wrongfully appropriated.
(1) Where anyone institutes proceedings for the recovery of property wrongfully appropriated, if he prefers to tender an oath, his adversary will be compelled to swear that nothing was appropriated at the time of the divorce; provided whoever tenders the oath himself or herself first takes the oath de calumnia.
(2) The husband, as well as the wife, is compelled to take the oath with reference to property wrongfully appropriated. But the father of him or her who appropriated the property is not obliged to be sworn, as it would be unjust for anyone to take an oath relating to the act of another. That party, therefore, is compelled to take the oath who is said to have appropriated the property, and hence the heir of him or her who is said to have wrongfully appropriated it is not compelled to be sworn.
(3) Where anyone desires to tender back the oath which has been tendered him, it has been decided that the Praetor shall not permit this to be done.
12. Paulus, Abridgments, Book VII.
Any more than where someone tenders an oath to a party whom he is suing to recover stolen property, in order to ascertain whether he himself is the thief.
13. Ulpianus, On the Edict, Book XXXIII.
Therefore, Labeo states that a woman is not permitted to tender back an oath; and the Edict of the Praetor is held to establish this.
14. Paulus, On the Edict, Book XXVIII.
In an action for the recovery of property which has been wrongfully appropriated, the husband or the wife shall be permitted to tender the oath with reference to certain property, and to confirm what has been testified to with reference to any other.
15. Ulpianus, On the Edict, Book III.
In a case of this kind it makes no difference whether the parties are living together or separately; since an action for property wrongfully appropriated can even be brought against a woman who has taken it into a house in which she is not living with her husband.
(1) A wife, a daughter-in-law, or the wife of a grandson can steal from her husband, her father-in-law, and the grandfather of her husband, but still she will not be liable for theft unless the son is not emancipated; for, in this instance, the daughter-in-law commits a theft against her father-in-law, and is liable to an action for theft.
16. Hermogenianus, Epitomes of Law, Book II.
Where the property of a husband is confiscated, the wife can only be sued for the simple value of what has been unlawfully appropriated; although, in all other cases, judgment can be rendered against her for fourfold damages.
17. Ulpianus, On the Edict, Book XXX.
Where a concubine wrongfully appropriates property, it is the practice to hold her liable for theft. Consequently, we say that whenever a marriage is void, as, for instance, where a ward marries her guardian, or where matrimony is contracted, contrary to the laws, and in any other case where it is not valid, the action to recover property wrongfully appropriated will not lie, for the reason that it can only be brought where a divorce takes place.
(1) When we speak of property wrongfully appropriated, we have reference not only to that which the woman removes when she forms the intention of obtaining a divorce, but also to such as she removes while she is still married, if, when she leaves her husband, she conceals the property.
(2) Julianus says that not only property which is in existence is included in a suit for wrongful appropriation, but also such as has already ceased to exist. He says that, under these circumstances, a personal action can also be brought for its recovery.
(3) Where a woman wrongfully appropriates property which has been given in pledge to her husband, she will be liable to this action.
18. Paulus, Questions, Book VI.
A personal action for the recovery of such property will also lie in favor of the owner of the same, but he is allowed to choose whether he will bring this, or a real action.
19. Ulpianus, On the Edict, Book XXXIV.
If a woman, at the time of the divorce, introduces thieves into the house of her husband, and removes property by their agency, even if she herself does not handle it, she will be liable to an action for its wrongful appropriation. It is therefore true, as Labeo states, that a wife is liable to this action, even if the property does not come into her possession.
20. Marcellus, Digest, Book VII.
Where a wife herself removes, or makes use of the services of the thief to remove property which her husband purchased in good faith, and does this with the intention of obtaining a divorce, judgment shall be rendered against her in an action for the recovery of property wrongfully appropriated.
21. Paulus, On the Edict, Book XXXVII.
If a woman, despairing of the life of her husband, after having surreptitiously removed some of his property, should obtain a divorce, and her husband should recover, an equitable action for the recovery of property wrongfully appropriated should be granted him.
(1) Where a slave belonging to a wife removes property of her husband by order of his mistress who intends to obtain a divorce, Pedius thinks that she is not guilty of theft, since she does not obtain anything to his own advantage; nor is she held to have rendered any aid to the slave committing the offence, as the woman herself did not commit it, although the slave should not obey his owner when ordered to commit a crime; but an action on the ground of property wrongfully appropriated will lie.
(2) Still, if a slave given as dowry steals from the husband, and the wife knew that he was dishonest, she must make good the entire loss to her husband; but if she was not aware of the bad character of the slave, she will then not be liable beyond the surrender of the slave by way of reparation.
(3) The action to recover property wrongfully appropriated is brought for reparation of the injury, even though the exaction of the dowry can only subsequently be demanded.
(4) If, where property has been wrongfully appropriated by his wife, the husband has been deprived of some advantage, this must be taken into consideration.
(5) Although this action arises from the commission of a crime, it still includes the claim for the property, and therefore is not prescribed after the expiration of a year, as is the case in a personal action for the recovery of stolen goods. Moreover, it will lie in favor of heirs.
(6) In this action, neither the husband nor the wife can obtain any benefit from insolvency, because it is based upon theft.
22. Julianus, Digest, Book XIX.
If a man brings an action against his wife on the ground of property wrongfully appropriated by her, and the valuation of the same is made in court, and the amount is paid, will she be entitled to bring suit to recover possession of the property, if she has lost it? A difficulty arises here, because she obtained possession by fraud. I answered that where anyone pays the amount of the appraisement of the property in court, he should be considered to occupy the position of a purchaser. Therefore, if the woman, against whom an action has been brought on the ground of property wrongfully appropriated, pays the appraised value of the same in court, she will be entitled to an exception against the husband, or his heir, if either should bring suit to recover the said property; and if she has lost possession of the same, a real action should be granted her.
(1) Where a woman wrongfully appropriated property in anticipation of the death of her husband, and he then dies, the heir can recover whatever had been appropriated by an action for the estate, or by one for the production of property in court.
23. Africanus, Questions, Book VIII.
Where marriage is re-established after a second divorce has taken place, it is held that a right of action continues to exist on account of property appropriated at the time of the first divorce, as well as on account of expenses incurred or donations made during the previous marriage.
24. Ulpianus, Rules, Book V.
The husband is entitled to an action for recovery as well as the personal action against his wife on the ground of property wrongfully appropriated by her, whether it belongs to him or is included in the dowry; and it is in his power to make use of whichever action he chooses.
25. Marcianus, Rules, Book III.
The action for property wrongfully appropriated is available where it was removed with the intention of obtaining a divorce, and the divorce actually followed; but if the wife appropriates the property of her husband during marriage, although this action will not lie, the husband can, nevertheless, bring a personal action to recover the said property; for, in accordance with the Law of Nations, I hold that property can always be recovered by a personal action from parties who hold possession of it unjustly.
26. Gaius, On the Provincial Edict, Book IV.
The action for property wrongfully appropriated is a personal one.
27. Papinianus, Opinions, Book IV.
The action for property wrongfully appropriated does not differ from that in which the woman is accused of the crime of adultery.
28. Paulus, Questions, Book VI.
Where a wife steals property belonging to her husband from a person to whom the former lent it, the latter will be entitled to an action for theft against her, although her husband can not bring such an action.
29. Tryphoninus, Disputations, Book XI.
The valuation of property wrongfully appropriated should be calculated with reference to the time when it was taken, for the woman is in reality guilty of theft, although she is punished with more leniency. For this reason property thus wrongfully appropriated cannot be acquired through usucaption by a bona fide possessor; but where it increases in value and is not returned, the appraisement will also be increased; as is the case in an action for the recovery of stolen property.
30. Papinianus, Questions, Book XI.
an action is brought against a woman on the ground of property wrongfully
appropriated after the marriage has been dissolved, the action is
extinguished in case the marriage should be re-established.
The Decree of the Senate enacted with reference to the recognition of children is in two parts, one of which has reference to the recognition of children by their parents, and the other to those who substitute spurious offspring.
(1) The Decree permits the woman herself, or her father under whose control she is, or anyone who is directed by either of them, in case she believes herself to be pregnant, to notify her husband, or her father under whose control she is, within thirty days after the divorce; or to leave the notice at his residence if there is no opportunity for personal service.
(2) We should understand the term "residence" to mean the lodging of the husband, if he lives in a city, but if he does not, but resides in a country house, or in a provincial town, the place where the parties have established their domicile during marriage.
(3) The wife should merely notify the husband that she is pregnant by him. She does not give this notice in order that her husband may send guards to watch her, for it is sufficient for her to inform him that she is pregnant. The husband should then either send persons to watch her, or should notify her that she is not pregnant by him; and it is permissible for this notification to be made by the husband himself, or by another party in his name.
(4) The penalty of the husband, if he does not send persons to watch, or does not notify the woman that she is not pregnant by him, is that he shall be compelled to recognize the child; and if he should not do so, to be punished with extraordinary severity. Therefore, he should answer the notice, or it should be answered in his name, that the woman is not pregnant by him. If this is done, it will not be necessary for him to recognize the child, unless it is really his own.
(5) It should be remembered that the notice does not proceed from the husband, but from the woman.
(6) If, however, the husband should offer guards to watch his wife, and she should not allow this; or if she does not give him notice of her condition; or if she should give him notice, but not consent to accept the guards appointed by the court, the husband or his father is at liberty to refuse to acknowledge the child.
(7) Where a woman does not give notice of her pregnancy within thirty days, but does so afterwards, she should be heard after proper cause is shown.
(8) If, however, she should entirely neglect to give the notice, Julianus says that this does not in any way prejudice the child.
(9) We should understand the thirty days subsequent to the divorce to be continuous, and not available days.
(10) In the Nineteenth Book of the Digest by Julianus, the following nice point is suggested. If the woman should not notify her husband of her condition within thirty days, but should be delivered of a child within that period, will the Decree of the Senate apply? He says that, in this instance, the Plautian Decree of the Senate will not be applicable, because it was not considered to have reference to a child who was born within thirty days, for the Senate appointed the thirty days for the notification of the pregnancy. I think, however, that this would not in any way prejudice the child.
(11) Just as, on the other hand, if the husband, after receiving notice from his wife, should send guards, this would not cause any prejudice to himself. He will, therefore, be permitted to deny that the child is his, nor will it prejudice him, because he placed a watch over the woman. This opinion is also stated by Marcellus in the Seventh Book of the Digest, for he says that if a party denies that a woman is his wife, or that she is pregnant by him, he can, without any prejudice to himself, very properly send persons to watch her, especially if he makes protest at the time that he does so.
(12) Julianus says in the Nineteenth Book of the Digest, that it is stated in the Decree of the Senate that if the woman should notify her husband that she had conceived by him, and he, after having been notified, should not send persons to watch or examine her, and does not declare in the presence of witnesses that she is not pregnant by him, he will be compelled to recognize the child when it is born; but it does not follow from this that if he says that the child is his, he must make it his heir if it was begotten by someone else. Still, he holds that when the case is heard in court, the admission of the father will establish a strong presumption in favor of the child.
(13) He also says that, on the other hand, where the woman, after a divorce has taken place, does not comply with what was prescribed by the Decree of the Senate, the father has the right not to acknowledge the child; and that it does not follow from this that, after the child is born, it cannot be declared to be his, but merely that the father will not be compelled to support it, if it should be proved to be his own offspring.
(14) Julianus also says that if a woman notifies her husband that she is pregnant, and he does not deny it, it must not be concluded from this that the child is his, although he can be compelled to support it. It would, however, be very unjust if, where a man has been absent for a long time, and having returned, finds his wife pregnant, and for this reason repudiates her, and he neglects to comply with any of the provisions of the Decree of the Senate, the child should be his heir.
(15) It is apparent from what has been said, that the child is in no way prejudiced, if the wife should fail to observe any of the provisions of the Decree of the Senate, when the child in fact belongs to her husband — and this not merely has reference to its rights, nor indeed to its maintenance, according to a Rescript of the Divine Pius; or if the husband has neglected to do what is prescribed by the Decree of the Senate, he can certainly be compelled to support the child, but he can repudiate it.
(16) It is clear that, if, after the woman has notified her husband, he should deny that she is pregnant by him, even though he may not send persons to watch her, he cannot prevent an examination being made to ascertain whether the woman is pregnant by him, or not. If this case is brought into court, and a decision be rendered on the point as to whether or not the woman is pregnant by her husband, the child must be recognized by the husband, whether it belongs to him, or not.
2. Julianus, Digest, Book XIX.
This applies to all cases, and therefore the child will be related by blood to its brothers.
3. Ulpianus, On the Edict, Book XXXIV.
If, on the other hand, the judge should decide that the child does not belong to the husband, even though it is really his, it is settled that a decision of this kind is equivalent to law. This opinion Marcellus approves in the Seventh Book of the Digest, and we make use of it at the present time.
(1) For the reason that the Plautian Decree of the Senate has reference to children born after a divorce, another Decree of the Senate was enacted during the reign of the Divine Hadrian, which prescribed that children born during marriage must be recognized by their parents.
(2) But what if a child should be born after the death of its father, and during the lifetime of its grandfather, under whose control it would be placed, if it should be proved that the said child is the issue of the son of the grandfather? It should be considered what must be held in this instance. The opinion should be adopted that the question of its recognition should be left to its grandfather.
(3) But what if, in this case, the question should arise whether the child was born during marriage, or subsequently? It must be said that proceedings should be taken in accordance with the Decree of the Senate for the determination of this point.
(4) And what should be done if it was denied that the woman was the wife of the alleged husband? Julianus informed Sextus Caecilius Africanus that there was ground for a preliminary inquiry.
(5) It must be held that these Decrees of the Senate are not applicable after the death of the father, if there is no relative under whose control the child can be placed. What claim to the estate could a child in this instance assert? Could he make such a claim, whether he was begotten by the person whose estate he demands, or not? What Julianus wrote in the Nineteenth Book of the Digest is true to the extent that, if proceedings for the recognition of the child had been begun during the lifetime of the father, and the latter should die before a decision was rendered, recourse must be had to the Carbonian Edict.
(6) These decrees of the Senate also have reference to children who are born their own heirs. The better opinion is, however, that they are not applicable where the child, whose recognition is in question, was not under the control of the party instituting the proceedings.
4. Paulus, Opinions, Book II.
Not only he who smothers a child is hold to kill it, but also he who abandons it, or denies it food, as well as he who exposes it in a public place for the purpose of exciting pity, which he himself does not feel.
5. Ulpianus, On the Duties of Consul, Book II.
Where anyone asks support of his children, or where children can be supported by their father, a judge should take cognizance of the matter.
(1) Should a father be compelled to support only such children as are under his control, or should he support those who are already emancipated, or who, for any other reason, have become independent, is a question for consideration. I think the better opinion is that even where the children are not under paternal control, they must be supported by their parents, and that, on the other hand, their parents should also be supported by them.
(2) Let us see whether we are obliged to support only our fathers, our paternal grandfathers, our paternal great-grandfathers and other relatives of the male sex; or whether we are obliged to support our mothers, and our other ascendants in the maternal line. The better opinion is, that in every instance, the judge should interpose for the purpose of giving relief to the necessities of some and the infirmities of others; and since this obligation is derived from justice, and from the attachment due to blood, the judge should carefully weigh the claims of each of the parties.
(3) It must be said that the same rule applies to the maintenance of children by their parents.
(4) Therefore we compel a mother to support her illegitimate children, and them to support her.
(5) The Divine Pius also intimates that a maternal grandfather is obliged to support his grandchildren.
(6) He also stated in a Rescript that a father must support his daughter, if it should be proved in court that he had actually begotten her.
(7) Where a son can support himself, the court should decide not to compel maintenance to be furnished him. Hence the Emperor Pius stated in a Rescript: "The competent judges and before whom you will appear, must order that you shall be supported by your father in proportion to his means; provided that you allege that you are an artisan, and that by reason of ill health, you cannot maintain yourself by your own labor."
(8) Where a father denies that a party asking for support is his son, and therefore contends that he should not furnish it; or where a son denies that an applicant for maintenance is his father, the judges must decide the case summarily, and if it is established that the petitioner is a son, or a father, they must then order him to be supported. If, however, this should not be proved, they shall not decide that maintenance shall be furnished.
(9) But it must be remembered that if the judges hold that support should be furnished, still, this does not prejudice the truth, for they do not decide that the party is a son, but merely that he should be supported. This the Divine Marcus also stated in a Rescript.
(10) If anyone should refuse to provide support, the judges must determine the amount to be furnished in proportion to his means, and if he still fails to provide it, he can be compelled to comply with the judgment by taking his property in execution and selling the same.
(11) The judge must also determine whether a relative or a father has any good reason for refusing to support his children. There is a rescript addressed to Trebatius Marinus which states that a father can properly refuse to support his son if the latter has informed against him.
(12) It is stated in certain rescripts that a father can be compelled by a judge not only to furnish provisions, but also all other necessaries to his children.
(13) Where a son has been emancipated before arriving at puberty, he can be compelled to support his father, if the latter is in poverty; for anyone would say with reason that it is most unjust for a father to remain in want, while his son was in prosperous circumstances.
(14) Where a mother who furnished provisions to her child, brings suit against its father, she should be heard under certain conditions; for the Divine Marcus stated in a Rescript addressed to Antonia Montana: "The judges will estimate how much shall be paid to you by the father of your daughter in proportion to the amount of necessary provisions which you have furnished her for her support; but you cannot obtain as much as you would have expended for your daughter through maternal affection, even if she had been driven away by her father."
(15) Filial affection requires that parents should be supported by a son who is in the military service, provided he has the means to do so.
(16) It is stated in a rescript that, although a parent should, according to the dictates of nature, be supported by his son, still the latter ought not to be required to pay his debts.
(17) There is also a rescript which states that the heirs of the son, if unwilling, are not compelled to furnish such assistance to their father that a son while living would provide him with through motives of filial duty, unless the father is in the greatest poverty.
(18) Judges are also accustomed to decide between patrons and freedmen, where the question of their maintenance arises. Therefore, if the patrons deny that the claimants are their freedmen, the judges must make inquiry, and if it is proved that they are their freedmen, then they must order them to be supported. The decree for support does not, however, prevent the freedman (if he denies that he is such) from contending for his rights against his patron.
(19) Support must be furnished by freedmen to their patrons who are in poverty in proportion to their means. If, however, the latter are able to support themselves, the authority of the judge need not be interposed.
(20) The question may be asked whether only patrons are to be supported, or whether their children must also be maintained. I think that, upon proper cause being shown, judges should decree that the children of patrons should also be supported, not indeed as readily as patrons, but sometimes; for freedmen should show reverence not only to their patrons but also to the children of the latter.
(21) The freedman of a woman is compelled to support her children.
(22) If anyone should desire to be supported by a freedman of his freedman, or by a slave whom he has manumitted by reason of a trust, or by one whom he has redeemed from slavery with his own money, he should not be heard. For, as Marcellus says, he should be compared with one who, by exacting a reward, loses thereby the rights he has in a freedman.
(23) If the son of his patron has accused the freedman of his father of a capital crime, he denies that the latter is required to support him.
(24) A freedwoman is also obliged to support her patron.
(25) An arbiter is usually appointed to decide with reference to the support of a patron, and he must ascertain the value of the resources of the freedman, in order that the amount of the maintenance may be determined, and this must be provided as long as the freedman is able to do so, and the patron requires it.
(26) Freedmen are compelled to furnish support for the father and mother of their patron, where the patron and his children are no longer living, if they are in need, and the freedmen have the means to do so.
6. Modestinus, Concerning Manumissions.
The patron, by refusing to furnish support at the request of his freedman, forfeits the privileges imposed in his favor upon the latter on account of his manumission, and he is punished by the loss of the estate of the freedman; but he is not required to furnish support, even if he is able to do so.
(1) A Constitution of the Emperor Commodus contains the following: "Where it is proved that a patron has been rudely treated by his freedman, or severely beaten by him, or abandoned while in poverty or while suffering from bodily illness; he must first be brought again under the control of his patron, and compelled to render services to him as his master, and if he does not take warning by this proceeding, he shall be sold to a purchaser under the authority of a magistrate, and his price given to his patron".
7. The Same, Opinions, Book V.
If he who is alleged to have been the husband of a woman denies that the marriage was contracted, for the reason that he is ready to prove that she who claims to be his wife is a slave, he shall be compelled to support her children in the meantime; but if it should be established that she was a slave, he who was charged with their support will not be prejudiced on this account.
8. Marcellus, On the Lex Julia et Papia, Book I.
The children of our male children are under our care, but this is not the case with those descended from females; for it is evident that a child whom a daughter brings forth is under the care of her father, and not of her grandfather, unless the father is not living, or is in want.
9. Paulus, On the Right of Patronage.
and their children have no right to the property of their surviving
freedmen, unless they prove to the court that they are so weak or
poor that they should be assisted with monthly contributions of food
by their freedmen. This rule has been established by many Imperial
In the time of the Divine Brothers a husband appeared who stated that his wife was pregnant, but she denied it, and the Emperors having been consulted on the subject, addressed a Rescript to Valerius Priscianus, the Urban Praetor, in the following terms. "Rutilius Severus seems to ask for something extraordinary in applying for a custodian for his wife, who is divorced from him, and who asserts that she is not pregnant. Therefore, no one will be surprised if We also suggest a new plan and a remedy. If the husband persists in his demand, it will be most convenient for the house of a respectable woman to be chosen into which Domitia may go, and that three midwives, experienced in their profession and trustworthy, after having been selected by you, shall examine her. And if all of them, or only two, announce that she seems to be pregnant, then the woman must be persuaded to receive a custodian, just as if she herself had requested it. If she does not bring forth a child, her husband will know that he will incur dishonor, and that his reputation will be involved, and he will not unreasonably be held to have contrived this in order to injure his wife. If, however, all of said women, or the majority of them, declare that the woman is not pregnant, there will be no reason for the appointment of a custodian."
(1) It is perfectly evident from this rescript that the Decrees of the Senate relating to the recognition of children will not apply, if the woman pretended that she was pregnant, or even denied that this was the case. Nor is this unreasonable, for the child is a part of the woman, or of her entrails, before it is born. After it is born, however, it is clear that the husband can, in accordance with his rights, by means of an interdict, demand that the child shall be produced in his presence, or that he shall be permitted by an extraordinary proceeding to remove it. Therefore the Emperor comes to his relief when it is necessary.
(2) In accordance with this rescript, a woman may be summoned before the Praetor and, having been interrogated as to whether she believes that she is pregnant, can be compelled to answer.
(3) What must be done in case she should not answer, or should not appear before the Praetor? Shall we apply the penalty fixed by the Decree of the Senate, namely, that the husband shall have the right not to acknowledge the child? But suppose that the husband is not content with this, and that he should prefer to be a father rather than be deprived of his son? Then the woman shall be compelled by the authority of the Praetor to come into court, and if she does come, to answer; and if she refuses, her property shall be taken in execution, and sold, or she shall be punished by a fine.
(4) But what if, having been interrogated, she should say that she is pregnant? The course prescribed by the Decree of the Senate must then be followed. If, however, she should deny that she is pregnant, then, in accordance with this rescript, the Praetor must summon midwives.
(5) It should be noted that neither the husband nor the wife is permitted to summon midwives, but they must all be summoned by the Praetor.
(6) The Praetor also must select the house of the respectable matron to which the woman must go, in order that she may be examined.
(7) What must be done if the woman will not permit herself to be examined, or refuses to go to the house? Under these circumstances, the authority of the Praetor must also be invoked.
(8) If all, or a majority of the midwives, declare that the woman is not pregnant, can she bring an action on the ground of injury committed? I think that the better opinion is, that she can bring such an action, provided, however, that her husband, by taking this course, desired to cause her injury. But if he had no intention to injure her, but, indeed, actually believed that she was pregnant, having been influenced by an extreme desire to have children, or because she herself induced him to think so, having during marriage pretended that this was the case, it will be perfectly just for the husband to be excused.
(9) Moreover, it should be remembered that no time has been fixed by the rescript, although in the Decrees of the Senate relating to the recognition of children, the term of thirty days was established for the woman to announce her pregnancy. What then should be done? Shall we say that the husband can always summon his wife before the Praetor or shall we appoint thirty days for him to do so? I think that, where proper cause is shown, the Praetor should also hear the husband after thirty days have elapsed.
(10) With reference to the examination of a pregnant woman, and the precautions to be taken at the time of delivery, the Praetor says: "If a woman, after the death of her husband, declares that she is pregnant, she must take care to notify the parties interested or their agent, twice within the month subsequent to his death, so that they may send persons to examine her, if they wish to do so. Free women to the number of five shall be sent, and all of them shall make the examination at one time, but none, while they are making the examination, shall touch the belly of the woman without her consent. The woman shall be delivered in the house of a respectable matron, whom I will appoint. Thirty days before she expects to be confined, she shall notify the parties interested or their agents to send persons to be present at her delivery, if they should desire to do so. There shall only be one entrance to the room where the woman is to be delivered and if there are more, they shall be closed by means of boards. Before the door of this room, three freemen and three freewomen, together with two companions, shall keep watch. Every time that the said woman enters this room, or any other, or goes to the bath, the custodians can previously make an examination of it, if they wish to do so, and also search any parties who may enter therein. The custodians who are placed in front of the room may search all persons who enter it or the house, if they so desire. When the woman begins to bring forth her child, she must notify all the parties interested, or their agents, in order that they may send persons to be present at her delivery. Freewomen to the number of five shall be sent, so that in addition to two midwives there shall not be present in the said room more than ten freewomen, nor more than six female slaves. All those who are to be present in the room shall be searched, for fear one of them may be pregnant. There shall not be less than three lights in said room, for the reason that darkness is better adapted for the substitution of a child. When the child is born, it shall be shown to the parties interested, or to their agents, if they desire to inspect it. It shall be brought up by whomever its father shall designate. If the father gives no directions in this respect, or the person by whom he desires it to be brought up will not take charge of it, this shall be done by someone appointed by me, after proper cause is shown. The person by whom the child is to be reared shall produce it, after it has reached the age of three months, twice every month until it is six months old; and then once a month, and from the time it is six months old until it has attained the age of a year, it shall be produced every other month; and after it is a year old, until it can speak, he shall exhibit it once every six months, wherever he wishes to do so. If the parties interested are not permitted to examine the woman, and to watch her, or to be present at her delivery, and anything is done to prevent what is set forth above, I will not grant permission for the possession of the child after I have taken cognizance of the case, nor will I do so where the child is not allowed to be examined, as is hereinbefore provided. Where it seems to me that a good reason exists, I will not grant those actions which I promise to those to whom the possession of property has been given in accordance with my Edict."
(11) Although the Edict of the Praetor is perfectly clear, still its interpretation should not be neglected.
(12) Hence, the woman should give notice to the parties interested, that is to say, to those whose interest it is that she should have no children, or to those who are entitled to the entire estate or a part of the same, whether as heirs at law, or under a will.
(13) If, however, a slave has been appointed heir, and there are no children; Aristo states that in this case it is in the power of the Praetor to permit him to take not all, but some of the precautions with reference to the delivery. I think that this opinion is correct. For it is to the interest of the public that there should be no substitution of a child, in order that the honor of persons of rank, as well as that of families, may be preserved. Therefore, where a slave of this kind has been appointed with the expectation of the succession, he should be heard; no matter what his standing is, since he is acting both in the public interest and his own.
(14) Moreover, those also must be notified who are next in the line of succession; as, for instance, the heir appointed in the first degree, but not one who has been substituted; and if the head of the family died intestate, those should be notified who hold the first place in the line of succession. Where, however, there are several who have the right to succeed at the same time, all of them should be notified.
(15) Again, where the Praetor says that he will not grant possession after having taken cognizance of the case, or that he will refuse certain actions, this has reference to a case where, through ignorance, some provision has been neglected of those which the Praetor wished to be observed; but this does not prejudice the rights of the child. For what kind of a rule would it be if one of the trifling formalities which the Praetor declares must be observed should not be carried out, and the possession of the property be refused to the child? The custom of the neighborhood must be followed, and in accordance with it the woman must be examined, and the delivery and the child watched.
2. Julianus, Digest, Book XXIV.
The Edict having reference to the inspection of pregnant women conflicts with the one granted in accordance with the provisions of the Carbonian Decree.
(1) Sometimes, however, the Praetor should dispense with these formalities, where the examination of the woman does not take place, or her delivery is not watched, and this occurs not through her malice but through her ignorance.
3. Paulus, On Plautius, Book XIV.
Where anyone is substituted for an unborn child, or is appointed heir in case there are no children, and he wishes to have the woman watched, he should be heard.
4. Scaevola, Digest, Book XX.
man by whom it was provided that, if he died without issue, whatever
came into his hands should be left in charge of his sister as trustee,
died after having appointed a posthumous heir, to whom he substituted
others. The question arose whether the sister or her agent should
be permitted to examine the woman, and watch over her delivery, in
accordance with the terms of the Edict, since the wife of the deceased
declared herself to be pregnant. I answered that in a case of the
kind with reference to which the inquiry was made, it could be held
that the solicitude manifested by the person charged with the trust
ought to be respected, and that the request should be granted, if
proper cause was shown.
The Praetor has most properly provided by this Edict that the possession which he promises in favor of an unborn child shall not give occasion to the depredations of others.
(1) He, therefore, establishes an action against a woman who fraudulently transfers this possession to another. For not only does he exercise his authority over the woman herself, but also over anyone under whose control she may be; that is to say, where another is allowed to obtain possession through their fraudulent acts, and he promises an action against them to the extent of the interest of the party who institutes the proceedings.
(2) The Praetor necessarily adds that where anyone has fraudulently obtained possession of the property he shall be compelled to relinquish it. He will, however, compel him to do this not through the authority of his office, or by means of his subordinates, but he attains his object better, and more in accordance with the Civil Law when, by means of an interdict, he compels the party in question to have recourse to the ordinary procedure.
(3) It is to the interest of him who institutes the proceedings, that another should not be allowed to obtain possession when the latter has consumed the income collected in good faith, or when a depredator has obtained possession, and the income cannot be recovered from him, for the reason that he is insolvent.
(4) This action will be granted even after the expiration of a year, because its object is the recovery of the property.
(5) If the woman who has committed the fraud is under paternal control, an action will be granted against her father, if any of the property has come into his hands.
2. Paulus, On the Edict, Book XXXVII.
A woman acts fraudulently who does not prevent another party from obtaining possession; or for the purpose of defrauding anyone, places another in possession clandestinely, and by means of some artifice.
If fraud is proved to have been committed by the father and the daughter,
an action can be brought against either of them whom the plaintiff
may select; because it is granted in favor of the party in interest.
Therefore he can recover anything which he may have lost from the
woman who is under paternal control, but this action will not be available
to him beyond the expenses incurred by the prosecution of the case.
Where possession is demanded by a woman in the name of her unborn child, and the oath having been tendered by the heir she swears that she is pregnant, the oath must be upheld, and she will not be liable on the ground that she has obtained possession through a false statement, nor shall any compulsion be applied to her after she has been sworn. If, however, she should bring forth a child, an inquiry can be made as to whether it is true that she was pregnant by her husband; for where an oath is taken between two persons, it cannot profit a third party, nor prejudice the rights of the others. Nor, under such circumstances, will the rights of the child be prejudiced.
(1) This Edict is based upon the same principle as the former one, for the Praetor, as it is easy to grant the woman possession of the estate in the name of her unborn child, should not fail to punish her false statement.
(2) A woman is held to have obtained possession fraudulently, who attempts to obtain possession being well aware that she is not pregnant.
(3) The Praetor promises this action within the available year, but not beyond it, because it is of the nature of a penal one.
(4) In like manner, in this instance the Praetor promises an action for the recovery of the amount of the interest of the plaintiff.
(5) The Praetor also promises this action against the father of the woman, provided it was by his act that she fraudulently obtained possession.
(6) This action can be brought by anyone whose interest it is that a woman should not be placed in possession of the estate; as, for example, either by a co-heir, who is waiting for a child to be born, or a person who has been substituted, or one who would inherit ab intestato if the woman should die.
(7) The interest of the plaintiff is, first of all, held to have reference to the maintenance which is claimed by the woman on the ground of her pregnancy; for nothing can be recovered on this account, unless the woman obtained possession of the estate through fraudulent representation. If, however, there was no fraudulent representation, she will not be compelled to pay anything, because she obtained support, without any reason, under the pretext of her pregnancy.
(8) Sometimes, the amount of the interest is increased, where, for instance, the heir being in doubt as to the woman's pregnancy, is excluded from the estate. For Julianus says that this action should be granted to the heir who is excluded, if it was to his interest that the woman should not fraudulently obtain possession; because if this were not the case, the appointed heir, by entering upon the estate, would leave a more valuable inheritance to his own heir. The woman could also be blamed for the diminution of the value of the estate, as the heir did not accept it on account of the prospect of the birth of a child.
(9) Julianus also says in the Nineteenth Book of the Digest, that if an heir, who has been substituted, should die while the woman is in possession of the estate, his heir can collect its value from the woman by means of the same action.
(10) But it should be considered whether the legacies and other charges of the estate should be relinquished by the woman; and it seems to me that it can be held that the legatees have a right to avail themselves of this action against her, because it is to their interest that the estate should be entered upon.
(11) It is clear that relief must be given to slaves who have been liberated, as against the party who has brought this action in behalf of the estate; that is to say, that he shall be compelled to discharge the trust, as he has received their value. I think, however, that the Praetor should come to the relief of those who have been directly manumitted, and by his intervention should maintain their freedom.
Where fraud exists on the part of a woman under paternal control,
and her father has participated in it, he will be liable in his own
Where a freedwoman is living in concubinage with her patron, she can leave him without his consent, and unite with another man, either in matrimony or in concubinage. I think, however, that a concubine should not have the right to marry if she leaves her patron without his consent, since it is more honorable for a freedwoman to be the concubine of a patron than to become the mother of a family.
(1) I hold with Atilicinus, that only those women who are not disgraced by such a connection can be kept in concubinage without the fear of committing a crime.
(2) Where a man keeps in concubinage a woman who has been convicted of adultery, I do not think that the Lex Julia de Adulteriis will be applicable, although he will be liable if he should marry her.
(3) If a woman has lived in concubinage with her patron, and then maintains the same relation with his son or grandson, I do not think that she is acting properly, because a connection of this kind closely approaches one that is infamous, and therefore such scandalous conduct should be prohibited.
(4) It is clear that anyone can keep a concubine of any age unless she is less than twelve years old.
2. Paulus, On the Lex Julia et Papia, Book XII.
Where a patron, who has a freedwoman as his concubine, becomes insane, it is more equitable to hold that she remains in concubinage.
3. Marcianus, Institutes, Book XII.
The freedwoman of another can be kept in concubinage as well as a woman who is born free, and this is especially the case where she is of a low origin, or has lived by prostitution; otherwise if a man prefers to keep a woman of respectable character and who is free born in concubinage, it is evident that he can not be permitted to do so without openly stating the fact in the presence of witnesses; but it will be necessary for him either to marry her, or if he refuses, to subject her to disgrace.
(1) Adultery is not committed by a party who lives with a concubine because concubinage obtains its name from the law, and does not involve a legal penalty; as Marcellus states in the Seventh Book of the Digest.
4. Paulus, Opinions, Book XIX.
The woman must be considered a concubine even where only the intention to live with her is manifested.
5. The Same, Opinions, Book II.
An official who is a resident of the province where he administers the duties of his office can keep a concubine.