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.
And,
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.
Tit. 2.
Concerning the action to recover property which has been removed.
1. Paulus, On Sabinus, Book VII.
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.
Where
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.
Tit. 3.
Concerning the recognition and maintenance of children, parents, patrons,
and freedmen.
1. Ulpianus, On the Edict, Book XXXIV.
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.
Patrons
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
Constitutions.
Tit. 4.
Concerning the examination of pregnant women, and the precautions
to be taken with reference to their delivery.
1. Ulpianus, On the Edict, Book XXIV.
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.
A certain
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.
Tit. 5.
Where a woman is placed in possession of the estate of her husband
in the name of her unborn child, and this possession is said to have
been fraudulently transferred to another.
1. Ulpianus, On the Edict, Book XXXIV.
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.
(1)
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.
Tit. 6.
Where a woman is said to have obtained possession of the estate of
her husband in the name of her unborn child, by having made a false
statement.
1. Ulpianus, On the Edict, Book XXXIV.
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.
(12)
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
name.
Tit. 7. Concerning
concubines.
1. Ulpianus, On the Lex Julia et Papia, Book II.
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.