The Novels of Justinian : Novel 117 ( Scott )

THE ENACTMENTS OF JUSTINIAN.

THE NOVELS.

~ CXVII ~

A MOTHER, GRANDMOTHER, AND OTHER RELATIVES SHALL BE PERMITTED TO DISPOSE OF THE REMAINDER OF THEIR ESTATES IN ANY WAY THEY MAY DESIRE, AFTER HAVING LEFT TO THEIR CHILDREN THE SHARE PRESCRIBED BY LAW ; AND CONCERNING SEVERAL OTHER MATTERS.

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

The Emperor Justinian to Theodotus, Praetorian Prefect of the East.

PREFACE.

Various questions having been submitted to Us, We have deemed it necessary to dispose of them by means of this general law.

CHAPTER I.

WHERE ANYONE APPOINTS A SON UNDER PATERNAL CONTROL HIS HEIR,
SUBJECT TO THE CONDITION THAT THE FATHER OF THE LATTER
SHALL NOT HAVE THE USUFRUCT OF THE ESTATE.

Hence We order that after a mother and a grandmother, or any other relatives, have left their children the share prescribed by law, they shall be permitted to dispose of the remainder of their estates, either wholly or in part, and give it either to a son, a daughter, a grandson, a granddaughter, and the descendants of the latter, or bequeath it by a last will under the following restriction and condition, namely: that the father, or anyone who has them under his control, shall not enjoy the usufruct of the property, nor share in the same to any extent whatever; for the persons whom We have just mentioned can leave this property to strangers without the parents of the children obtaining any benefit from the same. We make this provision in order that the privilege may be granted not only to relatives but also to everyone else.
(1) When property is left or donated in this way to persons who are under someone's control, they can, if they are of age, dispose of it in any way that they may desire; but if they are minors, it must be administered by whomever the testator or donor indicated for that purpose, until the children to whom the said property was donated or left attain their majority; and the testator or donor will be at liberty to entrust the management of the said property to the mother or grandmother of those to whom it is given even though she may have married again, provided she is willing to assume it. But where he who left or gave a share of his estate did not designate anyone to administer it for the children, or where he who was appointed is unwilling or unable to do so, or should die before the children attain their majority, We order that under these circumstances a competent judge shall appoint some trustworthy person curator of the inheritance, who must furnish the requisite bond, and the said curator shall manage and take care of the estate left to the minors until they become of age, as has been stated. We desire that the law which permits parents to enjoy the usufruct of their children's property shall be observed in all cases, except where the express condition that they shall not do so has been prescribed.

CHAPTER II.

CONCERNING ONE WHO WAS REFERRED TO AS A CHILD IN SOME INSTRUMENT.

We have considered it proper to order that when anyone has a son or a daughter by a free woman, with whom legal marriage can be contracted, and states either in a public or private instrument, bearing the signatures of three reliable witnesses, or in a will, or in the public records, that So-and-So is his son or his daughter, without adding the word "natural," such children shall be legitimate; no other proof of legitimacy shall be required of them; and they shall enjoy all the rights which Our laws bestow upon lawful issue; since the father (as has already been stated) has called them his own children, and has shown by this that he and their mother are legally married, and proof of this shall not be required of her. But where a father, having several children by the same woman, gives one of them some mark of legitimacy, in conformity with what has previously been stated, this acknowledgment will enable the others by a common mother to acquire the right of legitimate birth.

CHAPTER III.

CONCERNING A WOMAN WHO MARRIES WITHOUT ANY DOTAL CONTRACT.

We have thought it advisable to add to the present constitution that where anyone has married a woman through mere affection, without any written contract, and has had children by her, and the marriage is subsequently dissolved, and the husband marries another wife with whom he makes a dotal contract, and also has children by her, the offspring of the wife with whom he did not enter into a dotal contract shall not be prejudiced, so far as the paternal estate is concerned; but they shall be called to the succession of their father along with those born of the second wife, whose union was accompanied by a dotal agreement, since marriage can exist when induced solely by affection. We desire that this rule shall also be applicable where a man has married a woman under a dotal agreement, and afterwards marries another through affection alone.

CHAPTER IV.

CONCERNING THE MARRIAGES OF ILLUSTRIOUS PERSONS,
AND WHEN THEY ARE CONTRACTED BY MEANS OF DOTAL INSTRUMENTS.

But as We have previously enacted a law which directs that dotal agreements should be drawn up, or other proofs of marriage be established, before the defenders of the Church, by whom it is proper that marriages should be confirmed, or before whom the parties should be sworn, We consider it proper by means of the present law to provide a more exact regulation with reference to what has for a long time been determined relative to this subject. Hence We decree that those who are invested with the highest dignities, up to that of "illustrious," shall only be permitted to contract marriage when dotal instruments are executed. We except from this rule anyone who, before having obtained his rank, has married a woman solely through affection, for We order that marriages contracted in this way before promotion to official honors shall remain lawful, and that the issue of the same shall be legitimate. Persons, however, who have already attained to great distinction, cannot marry without entering into dotal agreements with their wives. We, however, release the barbarian subjects of Our Empire from this obligation, even though they may be persons of high rank, and We allow them to contract marriage through mere affection. We do not prohibit all Our other subjects, no matter what official rank they may have obtained, or what public duties they may discharge, with the exception of those who (as has already been stated) have attained to high rank, to marry women by entering into dotal agreements with them, when they desire, or have the power to do so. Where, however, this has not been done in writing, We decree that marriages which have been contracted through mere affection shall not be less valid, and that the issue of such matrimonial unions shall be legitimate.

CHAPTER V.

WHEN A MARRIAGE IS CONTRACTED WITHOUT A DOWRY
AND THE SURVIVING HUSBAND IS POOR, HE SHALL BE ENTITLED
TO THE FOURTH PART OF THE ESTATE OF HIS DECEASED WIFE.

We some time since enacted a law providing that where a man married a woman solely through nuptial affection, without any dowry, and he afterwards divorces her without any cause recognized by the law, she shall be entitled to the fourth part of the property of her husband ; and after this law We promulgated another, by which it is provided that if anyone should marry a wife without a dowry, having been induced to do so by mere affection, and lives all his life with her, and dies before she does, she, also, shall be entitled to the fourth part of his estate, provided that the said fourth does not exceed the value of a hundred pounds of gold. We, however, at present displaying more sagacity, do hereby decree that children born of marriages due to mere affection shall, under these circumstances, be deemed legitimate, and be called to the succession of their father's estates; and that in each of these instances the wife shall receive the fourth of her husband's property where he only had three children by her, or by a preceding marriage; but if he had more than that, the wife shall then be entitled to as much as each of the children. But she shall only have a right to the usufruct of the share of the property she receives, and the ownership of the same shall be reserved for the children whom she has had by this same marriage; but where such a woman has not had any children by her husband, We decree that she shall acquire the ownership of the said property. We desire that a woman who was put away without good cause shall receive the portion established by this law at the very moment of repudiation; but, under similar circumstances, We absolutely forbid the husband to obtain the fourth part of the estate of "his wife in accordance with Our former law.

CHAPTER VI.

CONCERNING THE CONSTITUTIONS ENACTED BY THE EMPEROR LEO
AND THE EMPEROR CONSTANTINE.

The Constitution of the Emperor Leo, of pious memory, shall preserve all the force in every case not provided for by the present law. We, however, entirely repeal the one enacted by the Emperor Constantine, of pious memory, and addressed to Gregory, as well as the interpretation placed upon it by the Emperor Martian, of pious memory, which forbids persons of high rank to marry women whom the said law styles "abject." We grant permission to persons even though they are dignitaries of high rank, if they wish to do so, to marry women of this kind, provided they enter into dotal contracts with them, but so far as other persons who are not distinguished in this manner are concerned, they shall be at liberty to marry them in any way they may desire, either by a written contract, or through nuptial affection, provided that the said women are free, and marriage can legally be contracted with them.

CHAPTER VII.

HOW AND BY WHOM CHILDREN ARE SUPPORTED
AFTER A MARRIAGE HAS BEEN DISSOLVED BY REPUDIATION.

We have thought that when marriage is dissolved between husband and wife, some provision should be made to prevent the children born of the marriage from suffering any injury through its dissolution, and to enable them to be called to the succession of their parents, and be maintained at their father's expense. Where the latter furnished the cause for divorce, and the mother does not marry again, the children shall remain with her, and the father shall pay for their support; but where it is proved that the woman was to blame for the dissolution of the marriage, under these circumstances, the children shall remain with, and be supported by their father. If the father is poor and the mother is rich, We direct that the poor children shall live with their mother, and be brought up by her; for as wealthy children are obliged to support their mother when she is poor, it is only just that poor children should be maintained by their wealthy mother, and this We order to be done. What We have stated with reference to poor children, and the duty of their mother to support them, We direct shall also apply to all ascendants and descendants of both sexes.

CHAPTER VIII.

CONCERNING THE JUST CAUSES FOR WHICH A HUSBAND IS PERMITTED
TO OBTAIN A DIVORCE.

  As We have found many cases in the ancient laws as well as in Our own where the dissolution of marriage was easily effected, We have thought it advisable to rescind some of the provisions which have appeared to Us to be improper causes of divorce, and to specifically insert into the present law only those for which either the husband or wife can reasonably give notice of repudiation. We shall now enumerate the causes for which a husband can safely give notice of repudiation to his wife and obtain her dowry, the ownership of which shall vest in the children by this marriage, and where there are none of these living, it shall vest in the husband. The following are good causes for repudiation.
  (1) Where a woman is aware that certain persons are plotting against the government, and does not inform her husband. But if the husband, having learned of this from his wife, should remain silent, the latter will be permitted to notify the government by means of any persons whomsoever, in order that her husband may not take advantage of this as a pretext for repudiation.
  (2) Where the husband thinks that he can convict his wife of adultery; but he must previously file a complaint against her, as well as against the adulterer, and if the accusation is shown to be true, the husband, after having served notice of repudiation, will be entitled to the ante-nuptial donation, as well as the dowry; and when there are no children, he will also be entitled to an amount equal to the third of the dowry, out of the other property of his wife, the ownership of which, as well as that of the dowry, will absolutely vest in him. But where the husband has children by the same marriage, We, in conformity with the spirit of the laws on this subject, do hereby decree that the ownership of the property, as well as that of the other possessions of the wife, shall be preserved for their benefit. A husband, legally convicted of being the accomplice of the adulterer, shall be punished along with his wife; and if the adulterer is married, his wife will obtain her own dowry as well as the ante-nuptial donation; and if they have children, she will only be entitled to the usufruct of the donation, being obliged to preserve the ownership of the same for her children, as prescribed by law. As a mark of Our liberality We grant the children all the other property of the husband. But where there are no children, We decree that the ownership of the ante-nuptial donation shall vest in the wife of the man who was guilty of adultery, and that the remainder of his property shall be confiscated to the Treasury, in conformity to the ancient laws.
  (3) Where a wife has plotted against the life of her husband in any way whatsoever, or where she has consented for others to do so, without informing her husband.
  (4) Where she attends banquets, or bathes with strangers, against the wishes of her husband.
  (5) Where she remains away from her husband's house without his consent, unless she is visiting her own parents.
  (6) Where, without the knowledge, or against the prohibition of her husband, she attends circuses, theatres, or other public exhibitions.
(7) If, however, a husband, without one of the aforesaid reasons, should drive his wife away from his own house, and she, not having any relatives with whom she can live, is obliged to pass a night outside, We order that the husband shall not, under these circumstances, have permission to send a notice of repudiation to his wife, since he himself is responsible for what she has done.

CHAPTER IX.

CONCERNING THE JUST CAUSES FOR DIVORCE WHICH ARE GRANTED TO THE WIFE.

  We decree that the following are the only causes for which a wife can reasonably serve notice of repudiation upon her husband, obtain her dowry, and exact the ante-nuptial donation, in case there are no children, or retain it for their benefit if there are any.
  (1) Where the husband was implicated in some plot against the Empire; or where, being informed that others were, he did not denounce them to the government either in person, or by someone else.
  (2) Where the husband has, in any way whatsoever, attempted to kill his wife, or if, being informed that others desired to do so, did not warn her, or take measures to avenge her in conformity with the laws.
  (3) Where the husband has attempted to violate the chastity of his wife, by seeking to deliver her to other men for the purpose of committing adultery.
  (4) Where the husband filed an accusation of adultery against his wife, and was not able to prove it, his wife will be permitted to serve notice of repudiation on him for this reason, and to recover her own dowry, and acquire the ante-nuptial donation, and, in addition, to punish the husband for a false accusation of this kind. Where there is no issue of the marriage, she shall receive the ownership of an amount of the other property of her husband equal in value to the third of the ante-nuptial donation; but where there are children, We order that the entire estate of her husband shall be set aside for their benefit. All other provisions relating to ante-nuptial donations, which are included in other laws, are hereby confirmed, and the husband, on account of the accusation of adultery which he was unable to establish, shall be punished in the same way that the wife would have been if the offence had been proved.
  (5) Where a man, having contempt for his wife, is known to have entertained another woman in the house where he lives with her; or if, while dwelling in the same city, he is convicted of having frequently been in the company of another woman, residing in another house, and having been reprimanded once or twice, either by his parents or by those of his wife, or by any other persons worthy of confidence, he does not abstain from such debauchery, his wife will for this reason be permitted to dissolve the marriage, to obtain her dowry in addition to the ante-nuptial donation; and in order to punish her husband for such an injury, she can also exact from his other property up to one-third of the appraised value of the ante-nuptial donation; and if she has any children, she will only be entitled to the usufruct of the said donation, and that of the penalty of the third of the amount which she is entitled to out of the other property of her husband, she being compelled to reserve the ownership of the same for their common children. When, however, she has no children, We direct that she shall receive the ownership of the said property.

CHAPTER X.

IT SHALL NOT BE LAWFUL TO DISSOLVE A MARRIAGE BY COMMON CONSENT,
UNLESS FOR SOME PLAUSIBLE REASON.

For the reason that certain persons up to the present time have been accustomed to dissolve their marriages by common consent, We absolutely forbid this for the future, unless where the parties interested are impelled by the desire of living in chastity. When they have any children, We decree that the dowry and ante-nuptial donation shall be preserved for their benefit. But if, after the marriage has been dissolved by common consent through motives of chastity, either of the parties should contract another, or is found to be living in debauchery, We order that if (as has already been stated) any children by this marriage should be living, the ownership of the dowry, of the antenuptial donation, and of the other property of the person who is guilty of the offence shall vest in the children, and when they are minors, the said property shall be administered by either the husband or the wife, who has not, in any respect, violated the present law. But where both husband and wife are given to the same vice, We order that their property shall belong to the children, and that someone shall be appointed to manage the shares of those who are minors, either by a competent judge or by other magistrates charged with this duty by Our laws. When there are no children, the property of both husband and wife shall be confiscated for the benefit of the Treasury, and they shall be subjected to legal punishment. Otherwise, however, We do not permit dissolution of marriage to take place by common consent under any circumstances.

CHAPTER XI.

FOR HOW LONG A TIME A WIFE SHOULD WAIT BEFORE MARRYING
AGAIN WHILE HER HUSBAND IS ABSENT ON AN EXPEDITION.

We have deemed it proper to amend what We have enacted up to this time with reference to soldiers, allies, members of favored corps, or any other persons forming part of the army, who are employed in military expeditions and operations. Hence We order that wives shall be compelled to await their husbands' return, no matter how many years they may be absent, even though they may not have received any information, or answers to letters which they may have written. Where, however, the wife of a soldier has heard that her husband is dead, We do not permit her to contract another marriage before having appeared, either by her parents or by someone else, before the first chartularies of the division in which her husband served, and inquired of them or of the tribune (if there is any) whether her husband is actually dead; and the said officers shall bear witness to this fact by swearing to it on the Holy Gospels, as well as by the execution and record of a public document. After the wife has received this formal proof of the death of her husband, We decree that she shall wait one more year, and after it has elapsed, she will be allowed to contract another marriage. If, however, a woman should presume to violate this provision, and marry again, both she herself and the man who married her shall be punished as guilty of adultery. Where the persons who have given testimony by public documents and under oath are convicted of having perjured themselves, they shall be deprived of their military rank, and be compelled to pay ten pounds of gold to him whom they falsely stated that the man was dead; and the latter shall be permitted to take his wife back, if he should desire to do so. But where the death of a member of one of the favored divisions of the army is in doubt, the evidence of the chief of the same and the officer in charge of the registers shall be obtained; and where the question is with reference to the death of an ally, his wife shall take the testimony of the commander of the post to which he is attached. We order that these rules shall be applicable to all other persons in the military service.

CHAPTER XII.

FOR WHAT REASONS A MARRIAGE IS DISSOLVED WITHOUT A PENALTY.

We have concluded that some special additions should be made to the above-mentioned causes by means of which marriages can be dissolved without a penalty; that is to say, in cases where husbands have not, from the beginning, been able to copulate with their wives, and to do what Nature has conceded to men; and, above all, when husbands and wives have, during marriage, chosen to adopt a holy life and reside in monasteries; and, finally, when they have been detained in captivity for a considerable time; for, in these three instances, We direct that the provisions contained in Our former laws which relate to this subject shall remain in force. Hence We decree that only the causes enumerated in the present law can bring about the dissolution of legitimate marriage. We order that all others, without exception, shall be abolished, and none of them (this, however, does not refer to such as are specifically mentioned in this Constitution), even though it may be included in the Constitutions formerly enacted, as well in the ancient laws, shall be able to dissolve the marriage.

CHAPTER XIII.

WHERE A WIFE HAS GIVEN NOTICE OF REPUDIATION TO HER HUSBAND
WITHOUT JUST CAUSE.

But for the reason that certain women who desire to live debauched lives hasten to dissolve their marriages, We order that when a wife wishes to dissolve her marriage for some other cause than those above stated by Us, she shall not be permitted to do so; and if she should still entertain this wicked design, and serve notice of repudiation upon her husband, We order that her dowry shall be given to him to be kept for their common children, in accordance with law, and that, if she should have no children, it shall belong to the husband. The woman shall, upon the responsibility of the judge who hears the case, be delivered to the bishop of the city in which both of them reside, in order that she may at once be confined in a monastery, to remain there as long as she lives; and when such a woman has children, two-thirds of her property shall be given to them, and the other third to the monastery to which she is sent, and in which the absolute ownership of the same shall vest. When, however, she is childless, but has parents, two-thirds of her property shall be transferred to the monastery to which she is sent, and the other third to her parents, unless they, while having her under their control, had given their consent to the illegal notice of repudiation; in which case We do not permit them to have any of her estate whatever, but We wish all of it to be transferred to the venerable monastery. Where, however, she has neither living children nor parents, the monastery will be entitled to all her property. If the judge who hears the case should not do this, that is to say, should not, after she has been arrested, deliver her to the bishop of the city, to the end that she may be placed in the monastery, and the said judge has jurisdiction in this Most Fortunate City, he shall pay a penalty of twenty pounds of gold, and his officials shall pay ten. Where a judge of this kind is stationed in a province, and does not obey what has been ordered by Us under such circumstances, he will be liable to a fine of ten pounds of gold, and his subordinates to one of five. When the judge has not been regularly appointed, he must pay a fine of ten pounds of gold, and his subordinates one of five, which fines shall be collected from the persons aforesaid by the Count of Private Affairs, and the Body of the Palatines, and be paid into Our Treasury. But where the husband has attempted to dissolve the marriage with his wife, and has illegally given her notice of repudiation, We order that he shall return what he received as dowry, and surrender the ante-nuptial donation, and that there shall be taken from the remainder of his property and given to his wife a sum equal to the third part of the amount bestowed in consideration of marriage. When there are children, the wife shall only be entitled to the usufruct of the ante-nuptial donation, in addition to that of the third of the estate of the husband granted by Us, and the ownership of the same shall be reserved for the children. When there are no children, the woman shall have both the usufruct and ownership of the property, and We order that these provisions shall be applicable not only to marriages dissolved for lawful reasons, but also to such as are dissolved for others that are illegal; and We decree that all questions having reference to the cases above mentioned shall be heard and determined in conformity with this Our Constitution.

CHAPTER XIV.

WHERE ANYONE PUNISHES HIS WIFE BY BEATING HER.

If a man should beat his wife with a whip or a rod, without having been induced to do so for one of the reasons which We have stated to be sufficient, where the woman is at fault, to cause dissolution of the marriage, We do not wish it to be dissolved on this account; but the husband who has been convicted of having, without such a reason, struck his wife with a whip or a rod, shall give her by way of compensation for an injury of this kind (even during the existence of the marriage) a sum equal in value to the amount of the antenuptial donation to be taken out of his other property.

CHAPTER XV.

WHERE A HUSBAND SUSPECTS ANYONE OF WISHING
TO ATTACK THE MODESTY OF HIS WIFE.

We also add to what has been already enacted that where anyone suspects some man of desiring to violate the chastity of his wife, and after having notified him three times in writing to desist and obtained the evidence of three men worthy of confidence, and after this he finds him associating with his wife, either in his own home, in that of his wife, or in that of the adulterer, or in a public house, or in the suburbs, he shall be permitted to kill him with his own hands without being apprehensive of any responsibility. If, however, he should find him talking with his wife in some other place, and he can prove this by three reliable witnesses called together for that purpose, he can bring him before a judge having criminal jurisdiction. If the judge should ascertain that it is true that the man was found with a woman after three written notices not to do so had been served upon him, the husband shall be allowed to punish him as being guilty of adultery from this fact alone, and can prosecute him for the crime.
(1) But as there are certain impious individuals who have even the audacity to commit adultery in religious houses, and are guilty of sin where men who fear God are accustomed to ask pardon for their offences, We order that if any such person against whom suspicions have arisen, after he has been warned three times (as has been stated) should be found in a religious house with the wife of another, the husband will be permitted to bring the two guilty parties before the defender of the Church, or other members of the clergy, in order for them to be kept separate at their risk, in accordance with the laws which forbid the most holy churches from protecting persons guilty of adultery, until the judge, having been notified of the crime, sends them to the bishop of the city to be punished. The judge shall not look for any other proof of the offence than (as We have already stated) that of the three notices aforesaid; for they, having been served, the guilty parties must, by all means, be prosecuted for adultery, and shall derive no protection from the sacred place for which they have shown contempt by their own illegal acts. For if Our laws do not permit persons who perpetrate rapes of virgins or adultery elsewhere to betake themselves to houses of prayer in order to be protected by the said houses, how can We allow ecclesiastical property to render assistance to those who have committed crime in the very church itself? Persons who presume to outrage the sanctity of sacred places shall be brought before the courts and suffer the penalty which they deserve; for who can be guilty of crime where salvation is solicited? And, generally speaking, We decree that if anyone should find his wife, his daughter, his granddaughter, or his betrothed, in conversation with a man in any religious house, and suspect that they are holding an interview for the purpose of indulging their base desires, by taking advantage of the sacred character of the place, he can bring them before the defender, or other ecclesiastics attached to the most holy church, in order that they may keep them separate at their own risk, until they can be brought before the judge and their case be decided in accordance with law.

EPILOGUE.

Therefore, We desire that the provisions prescribed by Our Tranquillity in the present law, which shall be perpetually valid, must be observed in all the cases to which it refers, with the exception of those which have already been disposed of by judicial decision, or amicable compromise; for We desire these to remain unaltered. Your Most Glorious and Eminent Authority will communicate this law to all persons by means of public edicts in this Illustrious City, and through instructions addressed to the Governors of provinces, in order that no one may be ignorant of what We have effected for the public welfare. Your Highness will also promulgate this law by means of private notices, without their publication resulting in any undue expense to Our subjects.

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