THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  XVIII  ~
CONCERNING THE LEGAL PORTIONS OF THE THIRD AND HALF OF ESTATES ; AND OF THE SUCCESSIONS OF NATURAL CHILDREN AND GRANDCHILDREN ; OF HOTCHPOT AND DISTRIBUTION ; AND OF THE DISAVOWAL OF THE EXECUTION OF INSTRUMENTS OR THE PAYMENT OF MONEY, AS WELL AS OF PROPERTY IN THE POSSESSION OF OTHERS.


 
( S. P. Scott, The Civil Law, XVI, Cincinnati, 1932 ).
 
 
The Emperor Justinian to John, Most Glorious Imperial Prefect of the East, Ex-Consul and Patrician. 
PREFACE.
  The government of the Romans which, as someone has said, was certainly founded by God, has already many good laws relating to wills; Our Codes abound in them; and not only have ancient jurists and pious Emperors written on this subject, but We, Ourself, no less than Our predecessors, have devoted much attention to this branch of legislation. And, as We are accustomed to consider God in everything that We do, Our sole desire is to please Him, and to perform acts worthy of honor. With this object in view, We incessantly direct Our attention to laws which are agreeable to Nature, and corrective of former enactments ; hence We have frequently been surprised that jurists and Emperors only allowed the fourth of an estate to be left to legitimate children who have not been disinherited by their parents, which share was given the name of a debt, whilst they permitted the remainder of the estate to be disposed of as the father might desire; and he often leaves it to cognates, strangers, or slaves who have been bequeathed their freedom. We are all the more surprised that the jurists and Emperors made no distinction where there are numerous children, even when they had not offended their parents; and, in every instance, even where there are ten, or a greater number, they did not allot them any more than three-twelfths of their father's estate. The result of this is that children who are in good circumstances during the lifetime of their father become poor after his death.
CHAPTER I.
   
CONCERNING THE LAWFUL SHARE WHICH FATHERS SHOULD LEAVE
TO THEIR CHILDREN ; THAT IS A THIRD WHERE THERE ARE FOUR OR LESS,
AND HALF WHERE THERE ARE MORE THAN FOUR.
  These reasons induce Us to amend the law, and to provide that where fathers or mothers have one, two, three, or four children, they shall be required to leave them not merely three-twelfths of their estates, but the third of the entire property, that is to say four-twelfths; and if the parents have more than four children, they must leave them half of their estates, namely, six-twelfths; and the four-twelfths where there are four children, and the six where the latter exceeds this number shall be apportioned among them in equal shares; for We are not willing that the allotment shall be determined inequitably through convenience in dividing the property (for where, under these circumstances, what is good is given to some, and what is bad to others, injustice will result), but such measures should be taken that each participant in the estate shall receive property of the same quality and quantity as the others; which will occur whether the father bequeaths his estate with the appointment of an heir, or distributes it by means of legacies or trusts. So far as the eighth, or six-twelfths belonging to the residue of the estate is concerned, the father shall be free to dispose of it for the benefit of his children or leave it to others; hence it is only after having done what they owe to nature, that parents shall have the right to manifest their generosity to strangers. The advantages of the present law shall extend to all persons to whom are conceded the right to complain of inofficiousness, in instances where the ancient fourth of the father's estate was not left to them.
CHAPTER II.
   
THE LEGAL SHARE OF CHILDREN OCCUPYING MUNICIPAL OFFICES SHALL BE
NINE-TWELFTHS OF THE ESTATE.
  The law recently promulgated by Us concerning decurions, and which provides that nine-twelfths of an estate shall go to the sons or daughters of decurions, is an exception to the general rule; and the remaining three-twelfths may be disposed of by the parents in accordance with their wishes. All laws relating to inofficious testaments and ungrateful and natural children, and especially those enacted by Us, shall remain in full force; and, in accordance with what has already been stated, We only increase the amount of the legal shares.
CHAPTER III.
   
WHERE A FATHER LEAVES HIS CHILDREN THE MERE OWNERSHIP OF HIS PROPERTY
AND HIS WIFE THE USUFRUCT OF THE SAME.
  We hereby prohibit an existing evil which, while it appears to have a lawful motive, is still productive of hard and bitter cruelty. For We have ascertained that when persons who are abouf to die have left the entire usufruct of their property to their wives by will, not acting in a paternal manner as men should do, but manifesting weakness and disregard for duty by leaving their offspring the bare ownership of their estates. Wherefore, I think that the object of a will of this kind is to enable wives to obtain the property, and the children to die of hunger. For how can they be brought up and have their daily food after the death of their father when nothing has been left to them, and the hatred of the wife which perhaps has no reasonable foundation, and deprives them of their daily subsistence? It shall not be lawful, hereafter, for anyone who has children to act in this manner, for he must, by all means, leave them their legitimate share, which We now establish, as well as the usufruct and ownership of the property, if he does not wish his children to perish suddenly of hunger, but to live in health, and call him father. We decree that these rules shall not only apply to the father but to the mother, grandfather, great-grandfather, and the wives of these persons; that is to say the grandmother, and great-grandmother on both the paternal and maternal sides.
CHAPTER IV.
   
IN WHAT WAY CHILDREN DESCENDING IN THE FEMALE LINE
CAN SUCCEED IN CASE OF INTESTACY.
  In the future, the law which provides that children and grandchildren, who are not proper heirs or under paternal authority, shall not be entitled to the third part of the estates which their parents, when living, ought to have left them by will, shall not be observed. Nor do We except grandchildren born to the son of paternal grandparents, for they can receive the entire share to which their father would be entitled if he were living. Grandchildren, however, descended from a grandfather through a daughter, whether on the father's or mother's side, shall have a third less of the estate; but only one order of succession shall apply to grandchildren and great-grandchildren, as We are not willing that females shall be distinguished from males by obtaining a smaller share under such circumstances. For neither a male nor a female alone is sufficient for the propagation of the race, but as God has formed both for the work of generation, We also preserve the same equality so far as both of them are concerned.
  (1) We make this law even more comprehensive, for We decree that it shall be applicable to such children as are only legitimated by marriage, even though dowries were not given after the ceremony took place; for the reason that the undoubted affection manifested by the parties is a sufficient justification of the legitimacy of their offspring. Not the gift of a dowry, but the affection of those who were united, constitutes a marriage. This law shall apply to children who, in accordance with Our Constitution, become legitimate after the subsequent matrimonial union of their parents, and this shall be the sanction of their legitimacy.
CHAPTER V.
   
CONCERNING CONCUBINES AND NATURAL CHILDREN,
AND IN WHAT WAY THEY CAN SUCCEED IN CASE OF INTESTACY.
  We have considered Nature alone in the enactment of the following provisions, for many weeping children, who are in distress, have frequently addressed their petitions to Us; and, indeed, We have always treated them with indulgence, but We have blushed because We could not do this legally; and therefore We have enacted the present law in order to benefit Our subjects and afford them all a legal remedy. We hereby permit the fathers of legitimate offspring to leave to their natural children any amount up to one-twelfth of their property, which share they must divide with their mother (as was formerly the case), and, where there are no legitimate children, an amount equal to half their entire estates. These provisions are contained in laws formerly promulgated by Us, which authorize a father to transmit this lawful share either by will, or in any other way whatsoever. On the other hand, the present law establishes the right of succession to the estates to the fathers of natural children, in case of intestacy, and therefore lays down a new rule. For if anyone should die without having made a testamentary disposition of his property, leaving no legitimate issue (We mean children, grandchildren, or other descendants entitled to the succession), or a lawful wife, and the cognates, for example, or the patron who claims the estate, or even Our Treasury, is called to the succession (for it is Our intention not to show any partiality), and while the deceased was living he had in his house a free woman with whom he lived in concubinage, and by whom he had issue (We do not permit this to be applicable except where it is certain that the concubine and her children resided in the father's house), We grant these children their maintenance; and, no matter what their number may be, they shall, in case of intestacy, be entitled to two-twelfths of their father's estate, and shall share the said two-twelfths with their mother in such a way that she will have a portion equal to that of one of them. This rule shall be observed, whether the father has children resulting from his cohabitation with a single concubine, or whether he has in his house other children of a concubine who is dead, or from whom he is separated; for in both instances We concede to all of them two-twelfths of the property of their father who died intestate. Where, however, a father has been given to licentiousness to such an extent that, having had several concubines in addition to the first one, he leaves at his death a number of them with their children, such a man is odious, and We absolutely exclude him from participation in the benefits of this law. For, as when a man is married to a lawful wife, he cannot have other wives and legitimate issue by them, so in like manner, We do not permit anyone who has children by a recognized concubine (as We have previously stated) to let the offspring of his other acts of debauchery share in the distribution of his property when he dies intestate. If We did not lay down a rule of this kind, a number of women would be found who were more or less attached to the deceased, and this would also be the case with children; and We are not enacting laws for the benefit of those living licentious lives, but for those who are chaste. We make no distinction whether the children are male or female, for, in accordance with nature, We do not prescribe one rule for women, and another for men. Therefore this law shall be observed for the future, and We shall repeal all others on the subject, as it corrects and explains many things which formerly were not intelligible or observed; and it shall not be applicable to what is past, for such matters cannot be subjected to rules which did not exist when they originated. Such are the provisions which have been established by Us with reference to the aforesaid successions.
CHAPTER VI.
   
CONCERNING COLLATION IN CASE OF DOWRIES OR ANTENUPTIAL DONATIONS.
  We think that it is advisable to enact what is contained in the following law. For, according to former constitutions, where parents died intestate, everything was brought into hotchpot, but where the deceased executed a will without mentioning it, hotchpot did not take place; and any dowry or other property which had been given remained intact, and only what had been bequeathed was taken into consideration. Without adopting this principle in its entirety, We order that, whether the deceased died testate or intestate (as it is uncertain whether he voluntarily failed to mention the donations which he made, or that this occurred on account of the suffering which preceded his death), collation shall be made in every instance, and that the estate shall be divided in conformity with preceding laws, unless the father expressly stated that it was not to be collated; but, on the contrary, his intention was that he whom the laws compel to collate property should keep what had already been given him, as well as what he was entitled to by the will. Everything heretofore provided by Us with reference to collation shall remain in full force.
CHAPTER VII.
   
WHERE A FATHER DESIRES TO DIVIDE HIS ESTATE AMONG HIS CHILDREN
DURING HIS LIFETIME.
  We think that it is necessary to insert in the present law a matter which has often been judicially determined by Us. For it frequently happens that fathers who have many children wish to divide their property among them before they die, in order to prevent them from engaging in fraternal controversies, which might cause even greater and more bitter disputes. In order to do this, they must clearly distribute their estates by will, or draw up other instruments making such a distribution and sign them; for, by so doing, they will divide their property among their children without giving cause for any doubt; but fathers do not do this, since they either only describe in their own handwriting a portion of the division which they make (and this does not always happen), or they frequently interline some other document, or fail to give an exact description of the property to be divided, and do not leave the paper in the hands of persons worthy of confidence. So far as the other part of the distribution not mentioned by them is concerned, this is usually done by a public writer, or by someone else who is corrupt; hence arise ten thousand grounds for litigation; because it is uncertain whether the division was voluntarily made by the father, or was due to the artifice of the person who, in drawing up the instrument, unduly favored one of those entitled to the succession. We, desiring that, for the future, Our subjects shall no longer be annoyed in this manner, do hereby decree that where anyone wishes to divide all of his estate among his children, or to bequeath only a certain portion of the same as a preferred legacy, he ought, as far as possible, to state this fact in his will, in order to benefit his children in a manner which will give no room for doubt. Where, however, by reason of some impediment which often embarrasses men, he failed to make such an arrangement and distribute his estate by his will, but nevertheless enumerated the articles which he desired to divide, and either signed the instrument with his own hand, or caused this to be done by his children, and his wishes are in this way rendered so clear that they cannot be doubted, the division shall be valid, and no other security shall be required. When anyone does not do this, but makes a confused division of his estate without the signature of witnesses (as very frequently happens) notice is hereby given that his children will reap no benefit from what he has done, but that they must divide the estate just as if no disposition whatever had been made of the same, and the judges of the case (whom the laws style judges of partition) will not be compelled to comply with what is stated in the document. For fathers must carefully provide security for their children, and not leave them any less than they are entitled to, or make any illegal bequests; for the reason that this gives rise to interminable difficulties, and often results in the commission of crime. All other provisions having reference to successions, collations, and other matters, made up to this time, are hereby confirmed.
CHAPTER VIII.
   
WHERE ANYONE DENIES HIS OWN HANDWRITING.
  The perversity of certain persons renders it necessary for Us to re-enact a law which bore the name of a tribune, and received from him the name of the Lex Aquilia. In accordance with its provisions having reference to denials, a man guilty of duplicity who attempted to deny his signature was subjected to a double penalty; and this rule was also applicable to other acts committed under the same circumstances. This law was, by degrees, deprived of its force through the exertion of mistaken clemency, which usually encourages the malevolence of unprincipled persons; hence, it has appeared to Us necessary to subject persons guilty of such improper and base denials to the punishment aforesaid. Therefore, if anyone should produce a written instrument, and the other party should deny that it is genuine, or he should acknowledge it, but denies having received the money mentioned therein, and his opponent proves this in a lawful manner, in both these instances We order that he who makes the denial shall be liable to double damages. This provision is not enacted because We delight in severe laws, but for the purpose of diminishing litigation; as We believe that the fear of a penalty is more promptly instrumental in effecting the acknowledgment of the truth. We desire that this penalty shall be incurred by persons making all kinds of denials, and judges are notified that if they should fail to enforce this law, they themselves will be liable to it. Where, however, the plaintiff does not attempt to prove the instrument, and gives.his consent for the defendant to swear to its denial, the latter will not be liable to the double penalty, if, when the oath is tendered him, he immediately retracts. But if, in the course of the trial, the plaintiff should tender the oath to the defendant, and the latter should confess the truth, We release him from liability to the double penalty; but, on account of his denial, We condemn him to pay the plaintiff all the costs incurred up to that time in the proof of his claim, and to establish the amount of said costs, recourse shall be had to the oath of the plaintiff. When the defendant, in the beginning, denies that the money has been loaned to him, and he afterwards admits certain payments, he shall be required to repay the entire debt by way of punishment for his original denial, just as one of Our Imperial predecessors decided; and We do not permit the judges to diminish this penalty, but, on the other hand, they must observe the law in its integrity. If, however, the defendant should produce receipts given by the plaintiff, and prove their genuineness, and the plaintiff disputes them, and claims not only the sums he denies having received, but a still larger one, the same reason exists for tendering him the oath under such circumstances.
CHAPTER IX.
   
CONCERNING DENIALS BY GUARDIANS AND CURATORS.
  Where curators are involved in litigation, in matters in which persons subject to their control are interested, punishment for contradictions of this kind (when they are made in the writing of the said curators) shall not be inflicted upon those of whom they have charge, but against the individuals who made the base and improper negation. Where anyone has rendered himself liable to the penalty of double, triple, or quadruple damages prescribed by the ancient laws, or contained in the Constitutions of the Emperors, it shall continue to be imposed as formerly, just as We have decreed in Our Institutes, Digest, and Book of Constitutions, for the present law is only intended to be a continuation of the former ones.
CHAPTER X.
   
IN WHAT WAY CONCUBINES OF A SERVILE CONDITION CAN BECOME LAWFUL WIVES.
  Doubts have been raised by certain persons, with malicious intent, concerning a subject treated of in some of Our Constitutions, and with reference to which several decisions have been rendered. As it is just that this condition should not longer prevail, We have disposed of it in the present law, for We have held that if anyone should live in concubinage with a reputable woman, and have children by her without the execution of any dotal instrument, and should afterwards desire to marry her, and a contract should be drawn up to this effect, and he should beget other children, then not only those born after this contract was executed, but also those born previously, will be legitimate. For the purpose of avoiding fraud and the malicious interpretation of persons constantly inclined to deceit, We have drawn up another constitution, by which We direct that even though no children may have been born after the dowry was given, or, if born, did not survive, the others shall be considered legitimate. Another doubt has been raised as to whether this rule is applicable to men living in concubinage with their freedwomen; but Our intention is clear in this respect, and this has already been decided by Us, for marriage with a freedwoman is by no means prohibited, and what We have decided with reference to other persons is also applicable to them. In order to dispose of all ambiguity on this point, We decree that if anyone, who has no legitimate wife or children, should entertain affection for his female slave, and have children by her, while she is in servitude, and should afterwards manumit her and her children, and confer upon all of them the rank of freeborn persons, and honor them with freedom in accordance with the prescribed formalities, and then should marry the woman, and, after the ceremony, should draw up a nuptial contract; whether any children are born afterwards or not (We include in this provision both cases of Our Constitution), she shall be his legal wife, and his children shall be under his control, and his proper heirs, as well as his heirs at law, in case of necessity (We refer to those born before the marriage), and by this means all of them will be placed in the rank of freeborn persons, and by the subsequent marriage they will enjoy the privilege of legitimacy.
EPILOGUE.
  Therefore Your Excellency will publish special proclamations in the provinces which you govern for the purpose of making all Our subjects acquainted with this law, and informed that, as We exert Ourselves to insure their welfare, We shall be fully rewarded for Our solicitude and foresight by the glory which God has conferred upon Our reign.
Given at Constantinople, on the Kalends of May, the year after the Consulate of Belisarius, 536.