THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
~ CXLIII ~ |
CONCERNING
A WOMAN WHO SUFFERS HERSELF TO BE CARRIED AWAY. |
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( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The
Emperor Justinian, Augustus, to Areobindus, Most Glorious Praetorian
Prefect, Ex-Prefect of Constantinople and Ex-General of the Army. |
PREFACE. |
No
one doubts that the interpretation of the law belongs solely to the
sovereign, since he has the right to promulgate it. We remember to have
formerly enacted a constitution having reference to the rape of betrothed
and married women, unmarried females, and widows; and of having subjected
to capital punishment not only their ravishers, but also the accomplices
of the latter, and all other persons who were known to have assisted
them at the time when the act was committed. We have also, by the same
law, permitted the ascendants of the women in question, as well as their
other blood-relatives and their guardians and curators, to prosecute
a rape; and We have especially punished the violation of women already
married or betrothed, because, under these circumstances, both rape
and adultery have been perpetrated. One of the penalties which We prescribed
was the right to claim the property of the ravisher, as well as that
of his accomplices, for the benefit of the woman concerned; and the
payment to the husband, out of the estate of the ravisher, of an amount
equal to the dowry brought him by his wife. We have especially added
that no woman nor virgin should be permitted to marry her ravisher,
but if her parents should desire to marry her to anyone (her ravisher
excepted), We have already forbidden him to marry her at any time; and
in conclusion We have decreed that if her parents should consent to
a marriage of this kind, they shall be deported. We are, however, surprised
that certain authorities have attempted to hold that if the woman who
was violated, either with her consent or without it, should marry her
ravisher against the tenor of Our Constitution, she would be entitled
to his estate, either under the terms of the law, or by will, if one
had been made. Those who presume to entertain such opinions have not
been able to understand the meaning of the aforesaid law; for if We
have prohibited matrimony of this kind, even when the woman consented
to it, and, on this account, have subjected her parents to the penalty
of deportation where they had consented to the union, why should We
honor women who have suffered violation, and choose to marry their ravishers,
by giving them rewards? Therefore, rejecting this unfounded doubt, We
have deemed it proper to interpret the former law by the present one,
and, with this end in view, We decree that if the ravished woman, no
matter what her status or age may be, should desire to contract a marriage
with her ravisher, and especially without the consent of her parents,
she shall not be entitled to the estate of her ravisher, under any circumstances,
either through the indulgence of the law, or by testamentary provision;
but his property, as well as that of his accomplices, which Our law
places at the disposal of the ravished woman, shall, from the date of
the perpetration of the crime, be transferred to his father and mother,
whether both, or only one of them be living, provided they are not proved
to have given their express consent to the marriage; and the woman who
did not hesitate to defile herself by marrying her ravisher shall have
no claim to his estate, which shall, as aforesaid, go to her father
and mother; but where the parents of the woman are already dead, or
gave their consent to an act of this kind, the property of the ravisher,
as well as that of his accomplices, shall be confiscated. We order that
the present interpretation shall apply, not only to all future cases,
but also to those which have passed; just as if this Our law had, in
the beginning, with its construction, been communicated to you, Most
Glorious, Illustrious, and Beloved Prefect. (1) Therefore Your Highness will order what We have decreed by this Our law to be observed and carried into effect. |
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