The Novels of Justinian : Novel 115 ( Scott )

THE ENACTMENTS OF JUSTINIAN.

THE NOVELS.

~ CXV ~

WHEN A JUDGE HEARS AN APPEAL, HE SHOULD DECIDE IN CONFORMITY WITH THOSE LAWS WHICH WERE IN FORCE AT THE TIME WHEN THE DECISION WAS RENDERED, AND NOT IN ACCORDANCE WITH THOSE WHICH WERE SUBSEQUENTLY PROMULGATED ; AND CONCERNING OTHER MATTERS.

( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ).

  (1) When appeals, reviews of cases, and reports of magistrates are heard, they shall be decided in conformity with the laws which were in force at the time when judgment was rendered, and not in accordance with those subsequently promulgated.
(2) If one of the parties litigant should state that he will abide by his allegations, but the other hesitates, as if he was not satisfied, the judge shall grant both of them a delay of three months, and when this term has elapsed, he must wait no longer before rendering his decision.
  (3) What cases of ingratitude can reasonably be stated by parents against their children.
(4) And, on the other hand, what cases of ingratitude children can reasonably allege against their parents.
  (5) The next of kin to a deceased person, as well as those who mourn his loss, shall not be arrested or brought into court during the nine months immediately following his death.
(6) Concerning the obligation contracted, and promises made with reference to pre-existing debts. Where anyone has previously borrowed money, or made any promises with reference to it such as, "I will pay the debt," or "So-and-So will pay it for me," or, "Either I or So-and-So will pay it."
The Emperor Justinian to Theodotus, Praetorian Prefect of the East.

PREFACE.

We have learned that a suit was brought between Eustatius, Most Reverend Bishop of the City of Thelona, and Pistus, deacon of the church of Thelmisense, and that a final decision was rendered by the Governor of the province, from which decision an appeal was taken. The judges before whom the appeal was brought, being in doubt, asked Us whether they should determine the case in conformity with the laws which were in force when the decision from which the appeal was taken was rendered, or in conformity with the tenor of those which We have enacted since that time. We have thought it just for a case on appeal to be heard and determined in accordance with the laws which were in force at the time when judgment was rendered. And with all due foresight, We direct that every time a doubt of this kind arises after the enactment of the present law, the case shall be decided in the same way.

CHAPTER I.

CASES TAKEN UP ON APPEAL SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS
IN FORCE AT THE TIME WHEN THE DECISION APPEALED FROM WAS RENDERED.

Therefore, We decree that where a final decision has been rendered in any case, and an appeal has been taken from it, the judges having cognizance of the appeal must decide the case in conformity with the laws in force at the time when the final decision was rendered, which rule also shall apply to cases reviewed by Praetorian Prefects, as well as to those heard by referees appointed by judges, when both parties have agreed to abide by their present allegations, and the judges shall inquire of their referees what decision should be rendered. For in all these instances, We decree that judges who have jurisdiction of cases taken up on appeal shall observe the laws which were in force at the time of the decision or report, even though a law making a different provision may have been promulgated and applied to former cases.

CHAPTER II.

CONCERNING THOSE WHO STATE THAT THEY HAVE OTHER ALLEGATIONS TO MAKE,
AFTER THEIR ADVERSARIES HAVE FORMALLY DECLARED THAT
THEY HAD NOTHING MORE TO ADVANCE.

We add the following provisions to this law, for the reason that it sometimes happens among litigants that one of the parties sets forth his allegations, and the other, being aware that he has a bad case, after the arguments and the delays granted by the laws to produce evidence (through fear that the weakness of his case may be manifested too soon) states that he is unwilling to rely upon the allegations which he has made; We hereby decree that when one party has produced all his testimony and the other says that he has more, the judge having jurisdiction shall compel the latter, without delay, to produce the remainder of his evidence within twenty days after his adversary has produced his; and if, after this time has elapsed, he does not do so, the judge shall grant him another month, in order that his malice may be exposed; and if, in spite of this, he still delays, he should give him a third month; and if, during the three months which We grant him, he does not produce all his evidence, the judge, without waiting any longer, shall render a decision in conformity with the laws; or, when it is necessary, he must refer the case to Us in order that litigants who conduct their suits without justification may not be allowed to protract the proceedings beyond reasonable limits.

CHAPTER III.

WHAT ARE JUST CAUSES FOR THE DISINHERITANCE OF CHILDREN.

We have decided that it is proper to add this chapter to the present law. Therefore We order that no father or mother, grandfather or grandmother, great-grandfather or great-grandmother shall, under any circumstances, forget to mention their son, daughter, or other descendants in their wills, or disinherit them unless they have left them, by donation, legacy, or trust, or in some other way, the shares to which they are entitled by law; or it has been proved that their children are ungrateful, and have expressly stated the instances of their ingratitude in their wills. But as We are well aware that the reasons for which children should be considered ungrateful are scattered through different statutes, and have not been clearly determined; and as, besides, some of these reasons have not appeared to Us to deserve the reproach of ingratitude, and others, which do deserve it, have been omitted, We have considered it necessary to mention them explicitly in this law, in order that no one, relying upon some other enactment, may be permitted to state instances of ingratitude which are not included in this Constitution. Hence We decree that the following shall be just reason for alleging ingratitude.
(1) Where a child has laid violent hands upon his parents.
(2) Where he has heaped gross and opprobrious insults upon them.
(3) Where he has brought criminal accusations against them, for offences which do not involve either the Emperor or the government.
(4) Where he is a malefactor, and habitually associates with criminals.
(5) Where he has attempted the life of his parents, either by poison or in some other way.
(6) Where a son has had criminal intercourse with his stepmother, or his father's concubine.
(7) Where a son has acted as informer against his parents, and, by so doing, has subjected them to great expense.
(8) Where one of the parents being ill, his or her children, or one of them who is entitled to. the succession, refused to furnish security for the person or debts of his parents (after having been asked to do so), when it is proved that he was solvent to the extent of the sum demanded. What We state with reference to security applies, however, only to male children.
(9) Where a son prevented his parents from making a will, and they were able to make it afterwards, they shall be permitted to disinherit their son for this reason. But where a parent dies intestate because he or she was prevented from making a will, and this is proved either by those who are called to the succession of the deceased ab intestato, along with the aforesaid son, who prevented the will from being executed after his death, or by those whom the deceased desired to be his heirs or legatees, or by persons who have suffered some loss because of interference with the right of testation, this ground of ingratitude shall be decided in conformity with the other laws enacted on this subject.
(10) Where, in opposition to the will of his parents, the son associates with actors or buffoons, and continues to do so, unless his parents belong to the same profession.
(11) Where one of the aforesaid parents, desiring to give his or her daughter or granddaughter a husband, and bestow upon her a dowry in proportion to his or her means, and the daughter refused to be married, and preferred to lead a life of debauchery. When, however, the daughter has arrived at the age of twenty-five years, and her parents have prevented her from marrying, and, in consequence, she had led a licentious life, or she had married a freeman without the consent of her parents, We are unwilling to characterize this as ingratitude, because not she, but her parents are to blame.
(12) If, however, either of the said parents should be insane, and his or her children, or any of them, or where there are no children, the blood-relatives of the unfortunate person who are called to the succession ab intestato should not treat him with proper respect and care, and the latter should subsequently be cured of his or her affliction, he or she will have the power to accuse the negligent son or sons, or cognates, of being ungrateful, in his or her will. When a stranger, seeing that the insane person is neglected by his or her children, cognates, or other appointed heirs, provides for him or her through motives of charity, We permit him to make a formal demand in writing upon the heirs at law, or those appointed by will to the estate of the insane person, to take charge of the latter. If, after a notice of this kind has been served, the heir should still be guilty of neglect, and the said stranger can prove that he has taken the insane person into his house, and cared for him at his own expense, until the end of his life, We decree that he who exhibited such solicitude and compassion for the insane person, even though he may have been in no way related to him, shall be entitled to his estate, and the appointment of his heirs shall be void, they being unworthy on account of their having failed to take care of the insane person (as We have previously stated), but the other provisions of the will shall remain in full force and effect.
(13) Where one of the aforesaid parents is retained in captivity, and one or all of the children do not hasten to ransom him, he shall have the power, if he can escape from captivity, to insert this as a cause of ingratitude into his will. But where, through the negligence or contempt of his children, he is not liberated, and dies a prisoner, We do not permit them to obtain his estate, for the reason that they did not make any effort to release him, and We order that all the property left by the captive to his negligent children shall pass to the church of the town in which he was born, that a public inventory of tsaid property shall be drawn up, in order that nothing of which it consists may be lost, and that whatever is acquired by the church in this way shall be employed for the ransom of captives. We prescribe these regulations only against persons whom it is not permitted to disinherit, and where the acts of ingratitude have been thoroughly established. It is obvious that it is ingratitude which has induced Us to give this law universal effect. And We order, in general, that where a captive has no children, and dies in captivity, and those persons who are called to his succession have not exerted themselves to liberate him, none of them shall succeed to his estate, even though the deceased may, before he was taken prisoner, have drawn up a will by which he appointed them his heirs. This appointment of heirs having been declared void, the other clauses of the will shall, however, be observed in all their force; the property of persons who have died in captivity will pass to the churches in the towns in which they were born, and must not be used in any other way than for the ransom of captives, in order that the estates of those who are not ransomed by their relatives may be employed for the deliverance of other captives, and their souls be comforted by this exceedingly pious act. What We have just decreed shall also be observed, if before having been taken prisoner, the captive appointed a stranger his heir, and the latter, being aware of this fact, neglected to ransom him. This penalty shall only be inflicted upon those who have reached the eighteenth year of their age. If, under such circumstances, a minor should not have the money necessary to redeem the captive, he shall be permitted, if he has reached the aforesaid age, to borrow it; and to hypothecate for this purpose any movable or immovable property belonging either to himself or to the person who is detained in captivity; for We direct that contracts made under such conditions, with reference to property which is proved to have been given or expended for the redemption of captives, shall be just as valid as if they had been entered into by individuals who were independent and of lawful age; and no prejudice shall result to those who, for reasons of this kind, may have contracted in the manner aforesaid with persons who are not their own masters; and he who returns from captivity will be compelled to ratify contracts of this description, and will be obliged to comply with them just as in the case of his own private obligations.
(14) Where either of the aforesaid parents, being orthodox, is convinced that his son, or his children, do not acknowledge the Catholic faith, and do not commune in the Church where all the patriarchs together teach the true religion, and spread the doctrine of the four holy Councils of Nicea, Constantinople, the first Council of Ephesus, and that of Chalcedon; he or she will be especially permitted to denounce them as ungrateful on this ground and to disinherit them by will, for We place heresy among acts of ingratitude. But with a view to the general welfare of Catholic children, We direct that, while preserving the force of laws already enacted with reference to other heretics, for instance, the Nestorians, and the Acephali, when their parents are known to have embraced the insane Hebrew tenets of Nestorius, or the mad doctrines of the Acephali, and have, for this reason, withdrawn from the communion of the Catholic Church, they shall not be allowed to appoint any other heirs than their orthodox children, who are members of the Catholic communion, or where there are no children, their agnates and cognates who also are Catholics. If there should be some orthodox children who are members of the Catholic Church, and there are others who, at the same time, are separated from it, We decree that the entire estates of the parents shall pass to those of their children who are Catholics, even though the said parents may, contrary to the tenor of this Constitution, have made testamentary dispositions in favor of heretical persons. But where the children separated from the Church subsequently enter its bosom, that portion of their father's estate to which they were entitled shall be transferred to them in the condition in which it was found to exist at the time of its delivery, in order that the Catholics who formerly had possession of it may experience no anxiety nor deprivation with reference to any profits which they may have acquired, or concerning their administration of said property during the intermediate time, for as We prohibit the alienation of anything which the Catholic heirs held as representatives of their brothers who were not Catholics, so We do not permit the restitution of any income from the said property, under any circumstances, to be exacted from those who have had possession of it, or that their management of the same shall be investigated. If the heretical children persist in the same error to the end of their lives, without becoming members of the Church, We order that the Catholic brothers, or the heirs of the latter, shall acquire complete ownership of this property. But where all the children are perverse, and are separated from the communion of the Catholic Church, and it is proved that there are agnates or cognates who are members of the said Church, they shall be preferred to the heretical children, and shall be entitled to the estate of the deceased; and where the children and the nearest agnates and cognates are strangers to the orthodox religion, and the deceased parents have, during their lifetime, belonged to the order of the priesthood, We desire that their estates should be transferred to the town in which they had their domicile; and if the ecclesiastics should neglect to claim them for a year, the ownership of the same shall pass to the Treasury. Where, on the other hand, the parents are members of the laity, We order that their property, without any distinction, shall also be united to Our private domain. These rules shall be observed even where the parents have died intestate, and all the regulations included in other constitutions against heretics, Nestorians, Acephali, and other persons who are not communicants of the Catholic Church (in which the patriarchs proclaim the doctrine of the four Councils hereinbefore mentioned), and which relate to their successions, shall also be observed; for as We are considering corporeal matters, how much more reason is there for Us to pay attention to the salvation of souls ? Therefore, whether parents have mentioned in their wills all the acts of ingratitude above stated, or whether they have only mentioned some of them, or even one alone, no matter which it may be, and the appointed heirs prove that the said act or acts are true, We direct that the will shall remain in full force. But where the acts of ingratitude are not established, the rights of the disinherited children cannot be prejudiced, the will shall be declared void, so far as it relates to the appointment of heirs, and the children shall obtain the estate in equal shares on the ground of intestacy. We establish this rule in order that children may not be condemned through false accusations, or may not, through fraud, be deprived of the estates of their parents. If, however, any legacies or trusts, grants of freedom, or appointments of guardians should be left in wills declared void under such circumstances, or where any other testamentary dispositions authorized by the laws are inserted in a will, We order that all shall take effect, that the legacies shall be acquired by those to whom they have been bequeathed, and that the will shall be just as valid, so far as these matters are concerned, as if it had never been annulled. Such are the rules which We prescribe with reference to the wills of parents.

CHAPTER IV.

WHAT ARE GOOD REASONS FOR THE DISINHERITANCE OF PARENTS.

  We have considered it proper to lay down the same rules as to the wills of children with some distinctions. Hence We order that children shall not be permitted to pass over their parents, or exclude them in any way from the acquisition of their property (to the extent that they are permitted to dispose of it), except in the cases which We shall enumerate, and which must be specifically set forth in their wills. These We declare to be the following:
(1) Where parents have delivered up their children to death; except in cases where treason is known to have been committed by them.
  (2) Where it is proved that parents have attempted to deprive their children of life by poison or other criminal acts.
(3) Where a father has had sexual intercourse with his daughter-in-law, or his son's concubine.
  (4) Where parents have prevented their children from disposing, by will, of property which they had a right to bequeath, and whatever We have ordered with reference to the interference with testation by children shall be applicable to parents. But if a husband should administer poison to his wife with the intention of either killing her or depriving her of reason, or a wife should administer it to her husband, or one of them should attempt the life of the other in any way whatsoever, We decree that an offence of this kind (provided it demands criminal prosecution) shall be tried and punished in conformity with the laws. Children shall not be permitted to leave any portion of their estates to one who has been convicted of a crime of this kind.
(5) Where all of the children, or only one of them, become insane, and the parents neglect to care for them, We order that, under these circumstances, everything shall be observed which We have previously decreed with reference to insane parents.
(6) We also add to these cases the misfortune of captivity; and where children suffer it, and are not ransomed because of the contempt or negligence of their parents, and they die while in the hands of the enemy, their parents shall, by no means, be entitled to the property of their children which the latter are entitled to dispose of; but all the rules shall be observed which We have above prescribed with reference to parents, cognates, and agnates, who are called to the succession of persons of this kind, or to strangers, where any of them have been appointed heirs.
(7) If any one of the aforesaid children, who belongs to the orthodox faith, should ascertain that his parent or parents do not acknowledge its doctrines, what We have ordered above with reference to parents shall be applicable to him under such circumstances. Therefore, where children have mentioned in their wills all or any of the acts of ingratitude which We have enumerated, or even only one of them, and the heirs whom they appointed should prove all, some, or only one of the said acts, We direct that the will shall remain in full force. But in case the acts of ingratitude should not be established, the rights of the children shall not be prejudiced; the will shall be void, so far as the appointment of heirs is concerned, and the natural heirs of the deceased will be entitled to his estate, on the ground of intestacy; but all legacies, trusts, grants of freedom, appointments of guardians, and other testamentary dispositions shall become operative, as previously stated. We absolutely repeal everything that preceding laws have provided in opposition to this Constitution, so far as it relates to legacies, trusts, grants of freedom, appointments of guardians, or any other similar subjects whatsoever. These are the penalties for disinheritance or the grounds prescribed for acts of ingratitude committed against the persons aforesaid. Where, however, any of these acts are included in the number of criminal offences, those who are guilty of them shall be subjected to the other penalties enumerated in the laws.

CHAPTER V.

A CREDITOR SHALL NOT BE PERMITTED TO ANNOY THE HEIRS OF A DECEASED PERSON ON ACCOUNT OF THE DEBT BEFORE TEN DAYS HAVE ELAPSED AFTER HIS DEATH.

We have laid down the preceding rules in order to prevent parents and children from sustaining any injury from testamentary dispositions. Where, however, those appointed heirs under these circumstances have been directed to remain content with certain property, We order that in an instance of this kind the will shall by no means be declared void, even though the testator may have left said heirs less than the lawful share to which they were entitled, but the deficiency must be made up by the other heirs in conformity with Our laws, for the sole intention of Our Serenity is to keep parents and children from being injured by being passed over, or suffering disinheritance. Parents should consider that there was a time when they were children, and that then they expected to receive the estates of those to whom they owed their existence; just as children should, on the other hand, use every effort to retain the good will of their parents, because they themselves desire to become fathers, and be honored by their offspring. The consequence of this is, that the present law which We have thought should be promulgated with reference to this subject, has been enacted for the benefit and security of both parents and children. While recently deciding a case, We have ascertained that Pulcheria, a daughter who had treated her parents with respect, was disinherited by her mother in her will, and deprived of both the maternal and paternal estates; but, as We have ascertained that this will resulted from the deceit and fraud of certain individuals, We have not permitted it to take effect, and have ordered, by a written decree, that the daughter should become the heir of both her father and her mother.
(1) We also remember that a law was promulgated by Us in which We ordered that no one should detain the body of a deceased person, or oppose his burial on account of a debt. We have recently been informed that a father was arrested for a debt while returning from the funeral of his son, and We have concluded that it is as religious as humane to suppress such acts of cruelty by means of this most pious law. Therefore We decree that no one shall, under any circumstances, be permitted to sue, or annoy in any way the heirs, parents, children, wife, cognates, agnates, or other relatives, or the sureties of a deceased person, within the nine days following his death, during which they are presumed to have been mourning; and We forbid any notice to be served upon them, or that they be brought into court either for a debt due from the deceased, or for any other matter in which they may be specially interested. If, during the said nine days, a creditor should be so bold as to exact a bond, a promise, a security, or anything else of this kind from the persons aforesaid, We decree that this claim shall be void. But where, after the expiration of nine days, anyone thinks that he has a right of action against these persons, he can exercise it in accordance with the laws, and his right will not be prejudiced in any way by prescription, or by any lawful allegation which he may make during the intermediate time.

CHAPTER VI.

CONCERNING THE ACKNOWLEDGMENT OF A DEBT ALREADY DUE.

We deem it proper to include in this law another chapter having reference to sums of money acknowledged or promised. Therefore We decree that where anyone admits a claim, or promises a sum of money, either in his own name or in that of someone else, for instance, making use of the clause: "I will pay you," he will absolutely be required to fulfill his promise, or discharge his obligation for the amount mentioned, and will be compelled to pay the debt. When he says, "You will be paid by me, or by So-and-So," those whom he mentioned and who did not give their consent to the obligation will suffer no prejudice from these words; and he who employed them will not be liable for anything, or will only pay in proportion to the share of the debt which he is known to owe in accordance with law. If he should say, "You will be paid either by me or by So-and-So," a pledge of this kind does not injure those who do not agree to it; but he who made it will be bound to discharge the entire indebtedness, and if, finally, anyone should say, "You will be paid," as this verb is used impersonally, he is considered to have promised nothing and to be free from all liability. But when a creditor believes that he has a right of action against the persons mentioned, he can exercise it against them in conformity with the laws, and avail himself of their aid.

EPILOGUE.

We order, most dear and devoted relative, that these provisions shall be observed in all cases which have not yet been disposed of by judicial decree or amicable compromise. Your Highness will communicate to all Our subjects this general law which We have enacted, and will publish it by means of edicts in this Royal City, as is customary, and in the provinces by special notices addressed to the Governors thereof.

Given at Constantinople, on the Kalends of February, during the fifteenth year of the reign of Our Lord the Emperor Justinian, and the Consulate of Basil.