The Novels of Justinian : Novel 22 ( Scott )

THE ENACTMENTS OF JUSTINIAN.

THE NOVELS.

~ XXII ~

CONCERNING MARRIAGE.

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

The Emperor Justinian to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.

PREFACE.

A great number of different laws have been promulgated by Us with reference to every branch of legislation; but as many of them appear to Us to be imperfect, We desire to open a way to Our subjects for better things, and explain to them in what way their condition may be improved. This law, which is applicable to all Our subjects, establishes a general rule for their conduct. For as marriage is so advantageous that it seems to provide an artificial immortality for the human race, in that, by the procreation of children, families are constantly renewed, and if God, in his mercy, by this means, confers an eternal existence upon our species, as far as is possible, it is only proper for Us to devote the greatest care to matters relating to marriage. Other laws that We have previously enacted on this subject are not applicable to all men in every instance, nor for all times; and since, as We have already stated, marriage is something which concerns all persons, as the human race is constantly renewed by its agency alone, there is nothing more deserving of Our attention. Ancient jurisprudence did not, however, establish a sufficient distinction between first and second marriages, but allowed fathers and mothers to contract an indefinite number of matrimonial unions without depriving them of any advantage, and the entire subject became confused even in its simplicity. The greatest care of the legislator with reference to this matter was exhibited during the reign of Theodosius the Great, and succeeding Emperors were also animated with the same feeling, especially Leo, of pious memory. We, also, have published many decrees relating to this question in Our Book of Constitutions, and have deemed it necessary to amend it, and make certain corrections by means of better provisions; giving attention not only to the laws enacted by others, but also to such as have been promulgated by Us. For We should not blush to amend laws which We have published, and ought not to leave this to others, when We ascertain that they can be improved and rendered more effective.

CHAPTER I.

THIS CONSTITUTION SHALL BE OPERATIVE IN THE FUTURE,
BUT SHALL NOT APPLY TO ANYTHING THAT IS PAST.

We publish two provisions antecedent to this law. First: all decrees already promulgated, either by Us or by Our predecessors, shall remain in full force, and shall not be altered by the present law; they shall be executed in every instance whenever they apply; all preceding occurrences shall be controlled by them; and they shall not be affected by this enactment. The latter shall only be applicable to cases which may arise hereafter; to first or second marriages which may be contracted ; to marriage settlements that may, in time to come, be agreed upon; and to successions to the estates of children. We leave whatever has occurred in the past to be decided by the laws already published, and by means of the present one We regulate whatever may hereafter occur. Thus the question arising from second marriages; the successions of children born of a first marriage, and to which their parents are entitled; profits resulting from dowries; donations made in consideration of marriage, or for any other reason, whether there are or are not any children by a former union; all these matters shall be decided in accordance with the laws in force at the time of their occurrence. Both men and women shall enjoy the benefit of the present legislation, whether they have married a second time, or their first marriage still exists; or whether they have succeeded their children; or no matter what they have done, if it was in conformity with previous enactments. For where a contract was made with reference to such laws, no one can be guilty of not having taken the future into consideration, if he trusted to those in existence at that time, and had no fear of others which had not yet been passed. All past events shall then continue to be governed by former legislation; and the future alone shall be subject to the provisions of the present decree, which (as has already been stated) when marriages are contracted hereafter, shall be solely observed in every case to which they are applicable. This is the first law of this Constitution.

CHAPTER II.

MARRIED PERSONS CAN BY WILL RELEASE THEMSELVES FROM THE PENALTY
IMPOSED BY THIS LAW UPON THOSE WHO CONTRACT SECOND MARRIAGES.

The second provision is as follows: Every testamentary disposition whatsoever, which either a husband or a wife may make with reference to these matters, shall from this day forward be valid. Hence anyone can dispose of his estate in a suitable manner, and his will shall be legal, as was provided by the more ancient Code of the Roman Republic, a short time after its foundation (We refer to the Twelve Tables), which stated: "Every one can bequeath his own property; let this be the law." Hence no one will have the power to act contrary to the wishes of the testator, even though he may have in his possession an Imperial Rescript, or some other document authorizing him to do so.
(1) Where the testator neither said anything, nor made any disposition unprovided for by former legislation, or contrary to the laws in general; in this case the present constitution shall be applicable, for it, as far as humanly possible, includes everything in a small compass; amends the laws having reference to first and second marriages, as well as those relating to the successions to children; to the dissolution of marriage caused either by death or by separation; and to events that take place before or after the widow's term of mourning has expired; and operates as a supplement to the one enacted on these different subjects; improving legislation which was formerly incomplete, frequently changed within five, fifty, and a hundred years, very inconsistent with itself, and, in many instances, ambiguous and constantly requiring correction.

CHAPTER III.

IN WHAT WAY MARRIAGE IS EFFECTED AND DISSOLVED.

Reciprocal affection constitutes marriage, without it being necessary to enter into a dotal contract; for when the parties are once agreed and have been influenced by pure affection, it is not requisite to stipulate for a dowry, or a donation on account of marriage. We shall treat of this relation as regards both its origin and end, whether the latter is accompanied by the penalty or not, since every tie effected by men is capable of being dissolved. A penalty is also prescribed where marriages contracted without a dowry are dissolved; and these We shall consider first.

CHAPTER IV.

CONCERNING DISSOLUTIONS OF MARRIAGE AND DIVORCES WHICH TAKE PLACE
BY COMMON CONSENT AND IN OTHER WAYS.

Marriages occasionally are dissolved by common consent during the lives of the contracting parties, but it is not necessary to examine this kind of separation, because the parties interested settle their affairs by agreement among themselves; at other times, they are dissolved for some good reason, and this kind of separation is called divorce by common consent; in other instances, separations take place without any cause whatever, and in others still, for one which is reasonable.

CHAPTER V.

CONCERNING MONASTICISM.

Divorce takes place without blame whenever either the husband or the wife enters monastic life, and desires to live in chastity; for another law of Ours specially provides that either a man or his wife, who devotes himself or herself to a monastic life, is authorized to dissolve the marriage, and separate from his or her consort by serving a notice by way of consolation. And whatever the parties may have agreed upon in case of the death of either, as set forth in their marriage contract, shall enure to the benefit of the abandoned wife or husband. The reason for this provision is, that wherever anyone embraces a different mode of life from that of his or her companion, he or she is considered to have died, so far as the marriage is concerned.

CHAPTER VI.

CONCERNING IMPOTENCE.

Marriage is dissolved for a necessary and not unreasonable cause, when the husband is incapable of copulation with his wife, and cannot do what nature created him for; and, in conformity with the law which We have already promulgated, if two years should have elapsed after the marriage, and the husband still not be able to show that he is a man, either his wife or her parents shall be permitted to dissolve the marriage, and give notice of repudiation to her husband, even if the latter should be unwilling to consent; the wife shall be entitled to the dowry, if one was given, and the husband shall return it if he received it; and the latter, on the other hand, shall be entitled to the ante-nuptial donation, and shall suffer no loss of his property. We amend this law by making a certain addition thereto; for We decree that not two years, but three, shall elapse from the date of the marriage; as We have ascertained that some persons who were impotent for the term of two years have afterwards showed that they are capable of the procreation of children.

CHAPTER VII.

CONCERNING CAPTIVITY.

The effect of captivity is to dissolve marriage by mutual consent, where one of two married persons is in the hands of the enemy; for where the husband suffers a misfortune of this kind, and his wife remains at home; or, on the other hand, the wife is reduced to captivity, and her husband remains in his country, the marriage is dissolved for a reason derived from the condition of slavery; as, where a person is once reduced to servitude, the inequality of condition does not permit the equality derived from the marriage state to continue to exist: Therefore, considering cases of this kind from an humane point of view, We desire that the marriage shall remain undissolved as long as it is clear that either the husband or the wife is still living, and while this is the case, neither the husband, nor the wife, who is free, shall presume to contract a second marriage without suffering the consequences of his or her rashness, and becoming liable to punishment, which We decree shall be for the husband, the loss of the antenuptial donation, and for the wife, the forfeiture of her dowry. When any doubt arises as to the survival of the person in the hands of the enemy, then, when either the husband or the wife is captive, it shall be ascertained whether the term of five years has elapsed, after the expiration of which time, whether the fact of death is established or remains uncertain, the person who is free will be permitted to marry without incurring any risk; which species of separation is classed by jurists among transactions concluded by common consent. We approve of this, since, under such circumstances, no notice of repudiation is necessary between persons thus separated from each other, and neither obtains any advantage; for the husband does not acquire the dowry, nor the wife the ante-nuptial donation, but each remains in possession of his or her own property.

CHAPTER VIII.

CONCERNING PENAL SERVITUDE.

We manifest Our indulgence in an instance in which the severity of the law was formerly exhibited. For when either the husband or the wife was, by virtue of a judicial decree, sentenced to the mines (such as are now situated in the islands of the Sea of Marmora, or in what is called Gypsus), he or she became a slave; and this being established by the ancient legislators as a part of the penalty, the marriage was dissolved on the ground that the culprit had been sentenced to punishment and to service as a slave. We now annul this provision, and do not permit any person who was well born in the beginning to. become a slave as a part of his punishment ; for We by no means desire anyone who is free to be reduced to a servile condition, as We have long since embraced every opportunity to promote the manumission of slaves. Hence marriage is in no respect affected by a decree of this kind, and shall continue to exist among persons who are free.

CHAPTER IX.

DISCOVERY OF THE SERVILE CONDITION.

If a judicial decree should reduce a free man, a free woman, or their children to slavery, and the marriage took place before sentence was passed, and it should afterwards appear that one of them is a slave, this will cause a separation of the parties interested, just as if death had occurred; for Our predecessors declared that where slavery was imposed it did not greatly differ in its effect from death. Therefore, in a case of this kind, the one who is free shall be entitled to his or her property; the children shall receive the shares which would go to them if their father or mother, who was reduced to slavery, had died; and the balance shall belong to the person in servitude.

CHAPTER X.

CONCERNING PERSONS WHO MARRY FEMALE SLAVES SUPPOSING THEM TO BE FREE.

Where a man marries a woman under the impression that she is free, and she afterwards proves to be a slave, We do not say that the marriage is dissolved, but that no marriage existed from the very beginning, in accordance with what has previously been stated by Us relative to the inequality of conditions; hence, no advantage can be provided for (nor anything else of the kind) in such a marriage, but actions for the recovery of the property of both parties will lie. We hereby decree and decide that a marriage of this description is void only where the person who contracted it did not know what he was doing, or the owner of the slave did not consent to the marriage, and there was no evidence of malicious intent or negligence on his part.

CHAPTER XI.

When a master gives his female slave in marriage, representing her to be free, and the man who marries her is free, and, having confidence in her master, who delivers her to him, receives her, whether any dotal contract is drawn up or not, as the master is responsible for the marriage, it will not be just for such an union to be dissolved, hence the slave shall receive his or her freedom by implication ; and, as the master is responsible for this, the said male or female slave shall immediately pass to the condition of freeborn persons and be considered such. Where, however, the master did not cause the marriage to be celebrated, but was aware of what was being done, and designedly kept silent in order afterwards to be able to bring suit against the husband, who is free, and his wickedness should be proved, We punish it by depriving him of his slave, and confirm the marriage, just as if the owner had given his consent in the beginning; and he shall lose his ownership of the slave, who shall be considered freeborn, and this will result, whether the master gave his consent or designedly kept silent. It is clear that any children born of such a marriage will be free and freeborn, in accordance with this Our law.

CHAPTER XII.

WHERE A MALE OR FEMALE SLAVE WHO IS ILL IS ABANDONED BY His OR HER MASTER.

There is much more reason for such marriages to be valid where a slave of either sex, who is ill, has been abandoned, or has been treated with contempt and sent away against his or her will. Slaves treated in this manner shall hereafter be considered free, and shall belong to no one; nor can they afterwards be molested by those who formerly disdained to possess them.

CHAPTER XIII.

Deportation, and the ancient interdiction of fire and water, as specified by Our laws, does not dissolve marriage; for this was decided long since by Constantine, and has been confirmed by Us; hence We have not included it in the present enactment, and, such being the case, the rule shall remain as it formerly was.

CHAPTER XIV.

THE FIFTH MANNER OF DISSOLVING MARRIAGE BY COMMON CONSENT,
AND CONCERNING ABANDONMENT.

We are aware that the founder of this Our Most Fortunate City (We refer to the Emperor Constantine, of Divine memory) enacted a law which provided that where anyone went upon a military expedition, and four years elapsed without his communicating with his wife, or giving her any evidence of his affection, she was free to marry a second time, after having served notice in writing upon the general-in-chief of the army, in order that he might bear witness that this was done; and, under these circumstances, she would incur no penalty by marrying again, nor would she lose her dowry, or be entitled to the ante-nuptial donation. The Most Holy Constantine promulgated this law. It does not, however, seem to Us to have been the result of careful deliberation, for the sorrow that a husband should experience from being deprived of the society of his wife, while he is exposed to the hardships of war, is certainly not less than when he is captive in the hands of the enemy. For this reason We are not willing for the wife to contract a second marriage as soon as was decreed by Constantine, but she shall be required to wait until ten years have elapsed, after which time, in case she should continue to write to her husband or send him messages by anyone, and he formally renounces the marriage, or remains absolutely silent, then the wife shall serve notice upon the Most Glorious Commander-in-chief, general, or tribune, to whose orders her husband is subject; and she can even address a petition to Us (which, however, shall not be permitted until after she has complied with the prescribed formalities), and then she will be free to contract a second marriage; but she is hereby notified that if she does not do what We have directed, she will be liable to the penalties prescribed by law for having rashly contracted a second marriage.
(1) These are the milder ways of dissolving marriages, just as if the parties had a common interest in severing the matrimonial tie by mutual consent.

CHAPTER XV.

CAUSES FOR REPUDIATION.

Causes must be sought for the accomplishment of other kinds of divorce when they are employed either by the husband or wife, in order that the one who is at fault may be punished by the loss of his or her property; that is to say, either the dowry or the donation given on account of marriage. The ancient Emperors established several different causes for divorce. Theodosius the Younger adopted some of them, introduced others, and published the constitution having reference to repudiation, and We have added certain other causes which We have thought had reference to the fault of either the husband or the wife.
(1) The following are the causes of divorce prescribed by the Constitution of Theodosius, of pious memory. If the wife can show that her husband has been guilty of adultery, homicide, or the administration of poison; or has taken part in sedition; or (which is the worst of all offences) has plotted against the government; or has been convicted of forgery, of violation of sepulchres; or has stolen anything belonging to a religious house; or has led a dishonest life; or has been guilty of theft; or is one of those cattle-thieves (who employ themselves in stealing animals or beasts of burden belonging to others, and transporting them elsewhere) ; or is proved to be a kidnapper, or to be living a debauched life, and, while his wife is living, cohabits with other women (conduct which especially exasperates married women who are of exemplary chastity, and careful to maintain the honor of the marriage bed), or if the wife can prove that her husband has attempted her life either by means of poison, by the use of arms, or in any other way (for there are numerous means by which human malice can be manifested) ; or where he has beaten her, these are valid causes for divorce. Therefore, when a wife can show anything of this kind, the law gives her permission to avail herself of repudiation to annul the marriage, and receive her dowry or ante-nuptial donation intact, not only where all these causes of divorce are susceptible of proof, but also where only one of them can be established.
(2) On the other hand, the law allows a husband to repudiate his wife if he ascertains that she has committed adultery; or has been guilty of the administration of poison; or of homicide, of kidnapping, of the violation of sepulchres, or the commission of sacrilege; or has aided thieves; or, without the knowledge, and against the wishes of her husband, she has enjoyed the pleasures of the table with guests unfit to associate with; or where, in violation of the orders of her husband and without good cause, she is in the habit of passing the night away from home; or, without his consent, she makes a practice of enjoying herself at the circus, and frequenting plays and theatres (We mean by this where comedies and similar exhibitions are presented, or where she attends combats between men and wild beasts) ; or where she treacherously attempts the life of her husband by means of poison, weapons, or any other means; or where she becomes the accomplice of persons plotting the establishment of tyranny; or where she has been proved guilty of forgery; or has laid violent hands upon her husband. Under such circumstances the law grants the husband the right to repudiate his wife, when he is able to prove only one of the causes hereinbefore enumerated, and authorizes him to take the dowry and ante-nuptial donation.
(3) But, in case either of these persons should give notice of repudiation without good cause for so doing, and, in consequence, the marriage should be dissolved, he or she shall be liable to the penalties which We have previously prescribed. Moreover, if the wife has been guilty of one of the above-mentioned offences, or has served notice of repudiation without sufficient reason, she will be prohibited from marrying again for five whole years; and any marriage which she may contract before the expiration of this time shall not be considered legal, and any person can appear in court and accuse her of having violated the law.

CHAPTER XVI.

If, however, a woman has good ground for serving notice of repudiation, and, in case of a contest, should be successful; or if her husband, having repudiated her without sufficient cause, has been subjected to punishment; she will be entitled both to the dowry and the donation given in consideration of marriage; but she will have reason to blush if she marries a second time before an entire year has elapsed. This requirement, however, is not imposed upon a husband who has repudiated his wife without good cause; for although he will not obtain any pecuniary advantage by doing so, he can immediately marry again, as no reasonable suspicion can be raised with reference to his offspring, on which account women are very properly forbidden to remarry before a year has expired; and this prohibition is so important that even though the marriage may have been dissolved by common consent, still, according to a constitution of Anasta-sius, of pious memory, the interdiction of a second marriage is still imposed upon women for the term of a year.
(1) These are the causes for divorce which Theodosius has communicated to Us, to which We have added three others taken from former laws. For where a woman is so depraved as designedly to commit abortion thereby rendering her husband unhappy, depriving him of the hope of having children; or where she is so licentious that, for the sake of pleasure, she even bathes with men; or where, while she is still united to her husband, she refers to her marriage with others; permission is accorded by Us to her husband to repudiate her, and acquire the dowry and ante-nuptial donation; since these causes are sufficient for the dissolution of the marriage, and are included among those for which the Constitution of Theodosius, of Divine memory, prescribed penalties.

CHAPTER XVII.

CONCERNING SERFS WHO CANNOT MARRY FREE WOMEN.

A serf, who is under the control of another, is not allowed to marry a woman who is free, whether the person entitled to his services does not know it, or, being aware of it, consents; and where anything of this kind takes place, the master of the serf shall, himself, be permitted to either punish him by a moderate castigation, or the Governor of the province can order this to be done, and separate him from the woman with whom he has been fruitlessly united; for a legal marriage does not take place under such circumstances, nor is the tender of the dowry or ante-nuptial donation valid; but there is merely the punishment of an illegal act.
(1) Such are the causes of the dissolution of marriage during the lifetime of the contracting parties; and such are also the pecuniary penalties, which consist of the loss of the dowry and the betrothal gift.

CHAPTER XVIII.

CONCERNING MARRIAGES CONTRACTED WITH DOTAL INSTRUMENTS.

We have also made provision for the punishment of marriages where persons contract them without any agreement for a dowry, and separate without good cause; for where a man marries a woman, or a woman marries a man, merely by consent, and without any contract for a dowry or the bestowal of a gift at the time of betrothal, the result will be that if a separation takes place on some frivolous pretext, the person who has been so rash shall not be liable to any penalty. We have enacted a constitution which provides that if anyone should marry a woman who is under the control of her parents, with the consent of the latter, or even if he should marry one who is independent, and no dowry is given, or dotal instrument drawn up, the husband cannot, on this account (although We have known it to be done in many instances), drive the wife from his house, where none of the aforesaid reasonable causes exist which Theodosius, as well as We Ourself, have enumerated. When, indeed, anything of this kind occurs, and the husband repudiates his wife without good cause, or even when he states a reasonable cause why his wife should be divorced from him, he shall be compelled to give her the fourth part of his property; and if it should amount to four hundred pounds of gold, she shall be indemnified by the gift of a hundred pounds, that is to say the fourth of the same; and when his estate amounts to less than this, the portion to be given shall always be the fourth. If, however, the estate of the husband should be worth more than four hundred pounds of gold, he shall not be required to give her more than a hundred pounds; for, in promulgating this law, We have considered this sum to be that which, for the most part, is provided for in the constitution of a dowry, it being, of course, understood that the property of the husband shall, in accordance with Our laws, be free from all indebtedness. On the other hand, if a wife who has received no dowry, is separated from her husband on account of some fault of her own, or if she should give notice of repudiation without any reasonable cause, she will be liable to the same penalty which We have already mentioned ; and if she is to blame for the dissolution of the marriage, she must wait five years before contracting a second one. But if the separation results from some act or fault of the husband, or this takes place by common consent, she shall only be compelled to wait a year to avoid any doubt as to the offspring, and in order that Our law may be perfect in every respect.

CHAPTER XIX.

CONCERNING REPUDIATIONS MADE BY SONS UNDER PATERNAL CONTROL.

Another pious and beneficial provision has been added by Us where notice of repudiation has been served during the existence of the marriage, for We forbid fraud to be committed against their parents by children under paternal control, as We have ascertained that sometimes men designedly, and without good cause, give notice of repudiation to their wives, and vice versa; and the marriage is dissolved in order that their parents may be compelled to pay the dowry or the betrothal gift, just as if this was legally done; while the husband and wife secretly cohabit with one another, and their parents are deceived as a reward for having treated their children with kindness. Hence We have drawn up this law, which provides that emancipated children, or those still under paternal control, whether male or female, shall not be permitted to dissolve their marriages to the prejudice of their fathers or mothers who have given or received dowries or ante-nuptial donations, either alone or along with their children; for as We require the consent of the parents in the execution of marriage contracts, We do not allow a marriage to be dissolved to the prejudice of the parents without their consent. Where, however, notice of repudiation is served, We do not permit the penalties to be exacted from the parents, if they had given or received anything either alone, or along with others; for it would be unreasonable when a parent cannot dissolve the marriage without the consent of his child, for the latter, while still a minor, and not knowing what would be advantageous to him, to be permitted to dissolve it contrary to the wishes of his parents, and in this way injure them. The philosophical Emperor, Marcus, was the first one who provided for this, and Diocletian followed him. We also have approved of this rule; and We here terminate what relates to the dissolution of marriage where the contracting parties are living.

CHAPTER XX.

We shall next discuss marriages dissolved by death, which puts an end to all things. When a matrimonial union is terminated by the death of either the husband or the wife, if the husband survives, he shall be entitled to the benefit of the dowry, as set forth in the terms of the dotal agreement; and if the wife survives, she shall receive the nuptial donation as was agreed upon by the contracting parties; they are not, however, prohibited from giving unequal amounts of property under such circumstances, but they are not permitted to provide for unequal advantages in their contracts, a regulation established by Leo in his laws, and which We, having adopted, have set forth with greater clearness. For where either of the parties in their agreement makes arrangements for either greater or less pecuniary benefits, it will be uncertain whether the amount should be increased on one side or be diminished on the other. Wherefore We have decided that the larger donation must be reduced to the size of the smaller one; for example, if one of the contracting parties has given a third and the other a fourth, the fourth alone will constitute the donation of each, and the amount in excess of this shall be equally divided; but this rule shall not apply to property which the parties themselves have agreed upon.
(1) When the marriage is dissolved for one of the causes hereinbefore specified, it will be better for both parties to remain single, and not sadden their children by contracting other marriages. If they should separate without marrying again, they will be entitled to retain what belongs to them, that is to say, the woman shall have the dowry, and the husband the ante-nuptial donation; still We do not impose any penalty when they contract second marriages. In this case they shall obtain the same advantages as in the first instance, for the husband shall be entitled to the dowry, and the wife to the antenuptial donation, the right to which shall severally vest in them, and the title shall in no way differ from that of their other possessions; so that, during their lives, they can alienate them in the same way as other property belonging to them from the beginning. If, however, they should die, they shall be permitted to dispose of such property to strangers by means of legacies and trusts, and We permit alienations of this kind to be made under the terms of constitutions already promulgated by Us.
(2) When, however, married persons appoint their children heirs to a portion of their estates and strangers heirs to the remainder, the property above mentioned shall be considered as not alienated, for alienation is not held to take place when a stranger is appointed heir, but the property still remains in the children. For if anyone should appoint all his children heirs to unequal shares of his estate, they will not receive the dowry or ante-nuptial donation in proportion to their hereditary shares, but will divide them equally, according to their number; and they will do this even if their father did not appoint any of them, but only strangers, his heirs; or they will be indemnified in some other way, even if they should not be the heirs of their parents. We have made this provision presuming what the wishes of the parents would be, for as they did not alienate the dowry or ante-nuptial donation while they were living, when they were not obliged to do so, and when at death they did not expressly dispose of such property in favor of other persons than their children, and did not leave it to strangers, this property, according to Our law, will go to the children as a preferred legacy, even though they did not become the heirs of their father or mother, or both of them, as well as where some of them become heirs, and others reject the estate; for this seems to Us more just than the rule established by Our predecessors. The benefit resulting from this law is that the children will not be disturbed or their rights affected, unless they themselves have given cause for this to take place.

CHAPTER XXI.

CONCERNING UNGRATEFUL CHILDREN.

If any child should be found ungrateful, We give its property to the other children who have not acted in this manner, in order that We may compel children to honor their parents and imitate the example of their brothers. But where all of them are ungrateful, then the property of the deceased, including the dowry and ante-nuptial donation, shall go to the other heirs, just as if it had been left to them; for We do not give it to the children, because they should not be rewarded for having treated their parents with disrespect.
(1) Where, however, there are children, and grandchildren representing others who are dead, We give the shares of the latter to their offspring, if they are the heirs of the father; otherwise We grant it to the brothers of the deceased. Hence, in enacting this law, We desire that this provision shall not only apply to the dowry, but also to the ante-nuptial donation, and also be applicable where no dowry has been provided for, on account of the advantages introduced by Our Constitution. For when parents do not contract second marriages but remain single, the property shall belong to the children in the same manner which We have previously mentioned.

CHAPTER XXII.

CONCERNING SECOND MARRIAGES.

Where persons, not content with their first marriages, marry again, it is necessary for the law to provide for cases where there is no issue by the second marriage; or where there is issue by the second; or where, on the other hand, there are no children by the second marriage but there are some by the first; or where there are children by both marriages; or where there are none by either. Therefore, where the " first marriage, or both, are childless, no penalty will attach to the second marriage, as the husband shall be free from the observance of any rule, and the wives shall only be required to permit a year to elapse before marrying again, for they are notified that if they marry before the expiration of this time, they will be liable to punishment and this punishment shall be more severe when there are children by the first marriage than when there are none. When there is no issue, the woman will be branded with infamy on account of the haste which she shows to contract another marriage; and she shall not be entitled to anything which may have been left to her by her first husband, nor shall she enjoy the use of the ante-nuptial donation; and she cannot give to her second husband property in excess of the third part of her estate; nor can she receive anything from a stranger, nor any estate, trust, legacy, or donation mortis causa; but all these things shall pass to the heirs of the deceased, or to her co-heirs, where she is called to the succession in default of other heirs. But where other heirs are appointed, or are entitled to the succession ab intestate, they shall receive the property bequeathed to a woman of this kind, and the Treasury shall not claim it (in order that We may not seem to have appropriated such property for the benefit of the Treasury), and whatever may come to her from any outside source shall belong to them. Anything left by her first husband shall, under such circumstances, pass to persons related to him in ten degrees of succession, as enumerated in the Edict; that is to say ascendants, collaterals to the second degree, and the other degrees in their regular order. In case none of these exists, the property shall go to the Treasury. The woman will not be entitled to the estates of her own cognates any farther than the third degree who may die without leaving a will, for beyond that degree her relatives have other heirs. We decree that one penalty to be inflicted upon such a woman is infamy, from which, however, she can be released by Imperial Letters, provided she has no children by her first marriage. If, however, she should have children of either sex, she can petition the Emperor to be relieved of the reproach of infamy, but she cannot obtain any benefit from rescripts. Where she wishes to enjoy the full effect of Imperial clemency and be released from other penalties, she must bestow upon her children by the first marriage half of her property absolutely, and without any condition whatsoever, nor can she retain the usufruct of the same; and this applies to all the property which she had when she married the second time, half of which (as We have already stated) must be transferred to the children who are the issue of the first marriage. This property the said children shall divide equally among themselves, and where they have offspring, they will transmit it to them (for it is necessary to add something to the ancient laws), but where the deceased did not have any children, her share shall pass to her brothers; and if all these should be dead, the mother shall be entitled to the property by way of consolation for her unhappiness; and We make this provision where the children die intestate, for where the mother has once been dispossessed of the property, We forbid them to bequeath it by will; or, when they survive, to dispose of it in any way they may wish. Women who marry before their year of mourning has expired incur these penalties; and this law forms a supplement to the three constitutions already promulgated on this subject.

CHAPTER XXIII.

WHERE A WOMAN MARRIES AGAIN AFTER THE YEAR OF MOURNING HAS ELAPSED,
AND CONCERNING THE PROFIT OF THE DOWRY AND ANTE-NUPTIAL DONATION.

When a woman allows the prescribed time to elapse without marrying again, and by so doing escapes the above-mentioned penalties, and she then contracts a second marriage (as has been previously stated), she can do this without any risk, provided she has no children. But when there is issue by the first marriage, as the law considers children dishonored on this account, then all the property which she has acquired from her husband shall be taken from her, with the exception of the usufruct of the same. This rule also applies to ante-nuptial donations and all other gifts bestowed by her first husband, either during his lifetime, or left to her by will, or by donations mortis causa, whether she received them through an appointment under a will, or as a legacy, or under the provisions of a trust. And, generally speaking, where a woman forfeits all right to any property of her first husband which she may have received, her children shall be entitled to it, and the ownership shall pass to them from the time that their mother was married to another man. This penalty is imposed both upon the husband and the wife, for if the husband has children and marries again, he cannot enjoy the benefit of the dowry on account of his gain by the second marriage, because he obtains other property from this source to which his right is indisputable. He can use and enjoy what he acquired by the first marriage as long as he remains single, and his children, even though they may be under his control, acquire the ownership of said property the moment that he contracts a second marriage. We make no distinction where the dowry or ante-nuptial donation has been given by the contracting parties themselves; or where others have done this in their behalf; or whether members of their own family or strangers have given it. This rule applies to both ante-nuptial donations and dowries.

CHAPTER XXIV.

What is decreed in this law with reference to the profit derived by persons through marriage is so strict that it prohibits all alienations, and does not even permit parents to make them under such circumstances, or to hypothecate the property, and if they should do so, their own estates will be liable. This, however, does not prevent them from disposing of such property in any way which they may desire, for the law would blush to authorize children to punish their parents. It threatens others, who acquire the property, by making the transaction void; and persons are notified by this Our law that where they purchase property from parents under such circumstances, or accept it from them by way of donation, or commit any of these acts, the result will be that whatever has been done or written shall have no legal effect. For the children, their heirs and successors, can recover the property from the said third parties, their heirs and successors, who shall have no right to oppose them, unless the term of thirty years has elapsed in favor of those who obtained the property, and this shall begin to run against the children from the time when they attained their majority, or were emancipated, unless the fact that some of them have not yet arrived at puberty may cause the prescription to be extended.

CHAPTER XXV.

Property of this kind goes to all the children by the first marriage. We do not permit parents, by means of selection, to give them unequal shares through being generous to certain ones and unjust to the others, for all the children are disgraced alike by a second marriage; but as parents succeed to their children as heirs, receiving equal portions of their estates, why should they appoint some to the prejudice of others, and not distribute among them equally the property acquired in this manner? Hence every child shall be entitled to a share equal to that of each of the others, and if he has any children, he will transmit it to them. The grandchildren who divide the property among themselves cannot claim any more than what their father would have received.

CHAPTER XXVI.

CONCERNING THE BENEFIT TO BE DERIVED FROM DOWRIES AND ANTE-NUPTIAL DONATIONS WHEN AN AGREEMENT HAS BEEN DRAWN UP WITH REFERENCE
TO THEIR BEING NO ISSUE BY THE MARRIAGE.

Since We have stated that the alienation of property obtained through a former marriage by parents is void, still it is proper to modify this to a certain extent. We have provided that such an alienation is absolutely void where all the children who were the issue of the first marriage are living, and their parents have died before them; but, on the other hand, if all the children should die first, the property will belong to the surviving parent; for who could impose such a restriction, when the children for whose benefit alone We have enacted this are no longer in existence? But an ingenious idea has enabled Us to establish a proper medium in these two instances; that is to say, where the children are still living and the father who married again is dead, no share of the property obtained by marriage will belong to those who have contracted second nuptials; and where all the children have died, the property reverts to them; hence if one of the deceased children has left any offspring, his property, as We have frequently stated, will pass to them. But where the said child dies without issue, his share will not entirely accrue to his brothers, but the parent who is married again will acquire as much of it as he or she would have a right to by virtue of the non-existence of children, and the remainder will go to the successors of the son, namely, his brothers, or strangers who were appointed heirs (which usually happens when the mother marries again), whether the child dies intestate, or after having made a disposition of his property. We have inserted this rule into Our laws, and have been the first to adopt it, and to accord this indulgence. Therefore when a parent has alienated property obtained by a former marriage before contracting a second one, and then one of his children dies, the alienation which he made will only be valid so far as the share to which he would be entitled by virtue of the clause providing for the non-existence of offspring is concerned; and it will be void with respect to the other shares to which the heirs of the deceased children are entitled. Hence the effect of the alienation will remain in abeyance, and subject to the occurrence of subsequent events; and it will either be entirely void from the very beginning, or perfectly valid; or it will be void or valid only to a certain extent.
(1) We make no distinction with reference to any nuptial property which children may acquire by the second marriage of their parents, where they are the heirs of the dead husband or wife, or of him who has survived either of them, when some of them have been appointed heirs, and others have not; for, as has already been stated, We grant the property obtained by marriage to all surviving children, whether they have been appointed heirs or not, as it should be divided equally among them, and any grandchildren will be entitled to their proportion of the share of their father. But (as We have previously stated) ingratitude will always be an impediment to a child in acquiring any of such property; for in Our laws We do not manifest indulgence to ungrateful children, but, on the other hand, We desire that they shall honor their parents and show them filial respect. As We prohibit any favoritism, and accord to all an equal share of the property, so also We do not repeal what has been provided in case of ingratitude. For it is clear that a child should be considered as ungrateful who has been guilty of such conduct either toward both its parents, or toward the one who died last.

CHAPTER XXVII.

CONCERNING THE PROHIBITION OF ALIENATING MORE THAN A SINGLE
SHARE OF PROPERTY OBTAINED BY MARRIAGE.

The observations made by Leo, of Divine memory, with reference to the obligations of persons who contract second marriages, seem to Us to be excellent. For he says that where parents, who have had children by a first marriage, contract one or more subsequently, the father cannot give to his second wife, nor the mother to her second husband, either by a donation inter vivos or mortis causa, any amount in excess of the share that a child of either sex, the issue of the first marriage, could claim if he or she were living; and that where there are several children who succeed to equal shares, neither the stepfather nor the stepmother will be entitled to more than each one of them. Where a parent, who marries a second time, leaves his or her estate to his or her children unequally divided, the father is not allowed to give to his second wife, or the mother to her second husband, either by means of a donation inter vivos, or by last will, any more than a share of the estate equal to that of the child who is entitled to the least; and everyone is aware that formerly a fourth, and that at present a third, and, under certain circumstances, the half must be left to children, unless they have rendered themselves unworthy by ingratitude. This rule must likewise be observed where a grandfather or a grandmother, a great-grandfather or a great-grandmother having grandchildren or great-grandchildren of either sex under parental control, or emancipated, and descendants in the paternal or maternal line, marries. Leo has also very properly observed that where anything has been left or given to a stepfather or a stepmother, in excess of the share to which either is entitled, this is considered as not having taken place, and the surplus shall be divided equally among the children. It has also been stated in a constitution that children who are the issue of a second marriage have a right to share in this surplus, but We are not willing to sanction this, and only the children born of the first marriage, for whose benefit We have enacted this legislation, shall profit by it, without anyone being able to deprive them of this advantage, either by the interposition of other persons or in any other way. This surplus, however, shall only be divided among children who have shown proper respect to their parents, for We exclude from this privilege those who have been guilty of one of the kinds of ingratitude enumerated by the laws, in order that the hope of sharing in the aforesaid surplus may, in every instance, induce them not to manifest any insolence, and violate the laws of nature. It is perfectly clear that if any of the children entitled to part of the surplus in question should die, his share shall pass to the surviving children, and the children of the deceased shall, in accordance with their number, each receive the portion to which he or she is entitled.

CHAPTER XXVIII.

Up to this time, it has not been determined by the laws to what date it is necessary to refer, in order to decide if the donation made to a second husband or wife is in excess of what is proper; that is to say, if it is necessary to revert to the time of the donation, or only to that of the dissolution of the marriage, and it appears to Us advisable to go back to the date of the death of the husband or wife who made the donation. For while men at the time of their decease dispose of more or less of their property, the distribution of their estates is generally dependent upon the caprices of fortune. Hence, in order that there may be no mistake, reference shall be had to the time of the death of the husband or wife who has married a second time, and from this date the appraisement of the donation given by the second husband or wife shall be made; and if it exceeds the amount which could be bequeathed, the surplus shall be adjudged to the children of the first marriage; and, in all cases of this kind, not the date of the donation or testamentary disposition, but that of its occurrence shall be considered.

CHAPTER XXIX.

CHILDREN BY BOTH MARRIAGES SHALL RECEIVE RESPECTIVELY THE PROPERTY OBTAINED BY THE MARRIAGE OF WHICH THEY ARE THE ISSUE.

We do not think that We should neglect confirming what Theodosius the Younger, of pious memory, decreed, when he stated that where a woman, having had children by a first marriage, contracts a second by which she also had children, and then her second husband should die, and she herself should subsequently die intestate, the children born of the two marriages shall share her estate equally; but those in each line shall be entitled to the ante-nuptial donations of their respective fathers. Thus the children by the first marriage will receive the entire donation given in consideration of that marriage, just as the children born of the second will also have a right to all the advantages resulting from it, even when the wife does not marry a third time; for how would this benefit the children by the first marriage? And how can it injure the issue of the second marriage, if the children by the third marriage are not injured? Each set of children shall then participate in all the advantages enjoyed by their father; those by the first marriage will be entitled to its advantages, and those of the second to the benefits conferred by the latter, even though the woman may not marry a third time. As a natural consequence, whatever applies to the wife is also applicable to the father when he marries a second time. Hence, just as the dotal property of the first marriage is preserved for the children who are the issue thereof, so, likewise, that derived from the second will belong to the children born of it, even though the father may not contract a third marriage.
(1) But either a father or a mother, who contracts a second marriage, will be entitled to any advantages resulting therefrom through either legacies or trusts, even if he or she should marry a third time; for they will acquire full ownership without the third union being able to prejudice them in any respect, and the property will become a portion of their estates which they can dispose of in any way that they may desire.

CHAPTER XXX.

NO MATTER BY WHAT KIND OF A DIVORCE A MARRIAGE MAY BE DISSOLVED,
ALL THE PROPERTY ACQUIRED THEREFROM MUST BE PRESERVED
FOR THE CHILDREN WHO ARE THE ISSUE OF THE SAME.

As We have established regulations concerning the dissolution of marriage which most frequently occurs through death, We desire to add a brief provision relative to the advantages acquired, whatever they may be, whether derived from the dowry or the ante-nuptial donation, when the marriage is dissolved through separation by common consent, or in any other way; for these advantages — like those obtained through the death of one of the married persons — shall entirely be preserved for the children; and this rule shall apply even where there is no dotal agreement, whenever, in accordance with one of Our laws, the presumption of either the husband or wife, who has given cause for repudiation, is punished. Nor do We make any distinction as to which one of them is to blame for the divorce. For no matter in what way it is obtained, the property derived from the marriage shall go to the children who are the issue of the same, whether the dissolution of the first or the second marriage be involved, even where no third marriage has taken place.

CHAPTER XXXI.

A DOWRY OR A DONATION ON ACCOUNT OF MARRIAGE GIVEN AT THE TIME
OF THE FIRST NUPTIALS CAN EITHER BE INCREASED OR DIMINISHED,
AND THIS CAN ALSO BE DONE IN CASE OF A SECOND MARRIAGE WHERE
THERE ARE NO SURVIVING CHILDREN WHO ARE THE ISSUE OF THE FIRST.

Some former laws have been enacted with respect to the increase or diminution of dowries and ante-nuptial donations, and, after due consideration, We have not only granted permission to married persons to increase donations on account of marriage during the existence of the latter, but We have also allowed them to do so from the very beginning; and as We have permitted them to augment these donations, so also We have allowed them to diminish them; but in order that what has been stated with reference to diminutions may not violate the provisions of the Constitution of Leo, of pious memory, We do not authorize married persons to make any such diminutions during the second marriage, when there are any children who are the issue of the first. For if an excessive dowry should be given at the time of the second marriage, or a similar ante-nuptial donation should be provided for, or any other extraordinary gift should be made, and afterwards, one of the parents having ascertained that this was prohibited by law, should defraud his children by diminishing the said dowry or donation, the consequence would be that the issue of the first marriage, having been injured, would not receive what they were legally entitled to, and the stepfather or stepmother would profit by their loss.

CHAPTER XXXII.

CONCERNING THE USUFRUCT LEFT BY A HUSBAND TO HIS WIFE
OR A DONATION MADE BEFORE THE MARRIAGE WAS CONTRACTED.

Where a husband has given to his wife, or a wife to her husband, by testamentary disposition, the usufruct of his or her estate, an ancient law prescribed that if the spouse who gave it should marry a second time, he or she would lose the usufruct in the same way in which they would be deprived of the ownership, if it had been left to either, and that the said usufruct would afterwards be acquired by the children; and, if they were under the age of puberty, the parent who married a second time would be accountable to them for the enjoyment of the usufruct during their minority, for this is what the law directs. We do not think that this provision is satisfactory, and We decree that where the usufruct of property which anyone is permitted to dispose of in this way is bestowed as a gift, or as a donation mortis caiisa, the recipient will be entitled to the enjoyment of it during his lifetime, even though he may marry a second time; and the same rule will apply to the use of the property, unless the husband or wife who either gave or bequeathed the usufruct expressly stated that if the one to whom it is given should marry again, the usufruct will determine, and revert to the ownership. We decree that these rules shall be observed whenever a gift of the usufruct is made.

CHAPTER XXXIII.

WHERE THE USUFRUCT OF PROPERTY IS GIVEN BY WAY OF DOWRY
OR ANTE-NUPTIAL DONATION.

Where, however, the usufruct of property is bestowed by way of dowry, or at the time of betrothal, We establish no innovation with reference to it, but all previous regulations are hereby confirmed, and the property shall remain in the hands of the recipient during his or her lifetime, even though the persons who made the donations should revoke them ten thousand times when they are at the point of death; for a private individual is not authorized to deprive anyone of an advantage conferred by law.

CHAPTER XXXIV.

A FATHER DOES NOT LOSE THE USUFRUCT OF PROPERTY WHICH BELONGED
TO THE MOTHER OR WAS ACQUIRED BY MARRIAGE.

While We are treating of the subject of usufructs preserved by the laws, it will be advisable to confirm the provisions included in the three preceding constitutions, which state that the father, even though he may marry again, will be entitled to the usufruct of all the property which passes to his children, whether through the maternal line, by means of donations in consideration of marriage, or in any other way; for the laws of Our predecessors have declared (and We hereby confirm it) that fathers, during their lifetime, have the right to the entire usufruct of property derived from the mother, or from anyone else, which belongs to the children. We, however, except from this rule all peculium castrense or quasi castrense.

CHAPTER XXXV.

WHERE A WOMAN WHO HAS GIVEN PROPERTY TO HER CHILDREN
DESIRES TO REVOKE THE GIFT ON ACCOUNT OF THEIR INGRATITUDE,
AFTER SHE HAS CONTRACTED A SECOND MARRIAGE.

Where a mother, who has given something out of her own property to her child, marries a second time, she will not be permitted under the pretext of ingratitude to revoke the gift which she made. For she cannot allege this reason because she will be presumed to have acted on account of her second marriage; still, the case will be otherwise if it is established that the child has openly attempted the life of its mother, or has raised impious hands against her, or has tried to deprive her of all her property.

CHAPTER XXXVI.

WHERE A WOMAN HAS CONTRACTED A SECOND MARRIAGE SHE CANNOT TAKE ADVANTAGE OF THE RANK OR PRIVILEGES OF HER FIRST HUSBAND.

We do not permit a woman who has contracted a second marriage to continue to enjoy the dignities and privileges of her former husband, but she shall be reduced to the condition of the second; and the reason for this is that the woman who forgets her first marriage ought not to be allowed to profit by the advantages derived from it.

CHAPTER XXXVII.

CONCERNING FREEDWOMEN WHO MARRY THEIR PATRONS.

The Emperor Alexander, of Divine Memory, has taken precedence of many ancient legislators by having decreed that if anyone should manumit a female slave, and then marry her, and she, after having thus been raised above her rank, should obtain a divorce, the law will not permit her to marry a second time without the consent of her first husband; for it would consider this second marriage not as a matrimonial union, but as mere fornication and debauchery, by means of which a disgraceful injury is inflicted upon him who gave her her freedom.

CHAPTER XXXVIII.

We have also found a constitution of the same Emperor which We think worthy of being confirmed by Us, which says that, as a mother appears better fitted to conduct the education of her children than anyone else, this law confers that right upon her, unless she contracts a second marriage.

CHAPTER XXXIX.

WHERE A HUSBAND RETURNS THE DOWRY TO HIS WIFE DURING MARRIAGE.

Dowries which the contracting parties have received are not readily transferred to wives during the existence of the marriage, unless for certain causes enumerated by the law; and where such a thing takes place, it is held to be merely a donation. If the woman should die, the husband who returned the dowry to his wife prematurely will receive it again from her heirs, together with any profits which may have accrued in the meantime; and he and his heirs will be entitled to the benefit of the same, in accordance with the terms of the nuptial agreement. If the husband should marry a second time, the children can hold the dowry without power of alienation, as is generally provided. But where the husband did not return the dowry while the marriage was in existence, it can be recovered from the heirs after the death of the wife, in compliance with the dotal contract.

CHAPTER XL.

WHERE A WOMAN WHO IS ADMINISTERING THE GUARDIANSHIP
OF HER CHILDREN MARRIES A SECOND TIME.

When a woman who is administering the guardianship of her minor children, and has sworn that she will not contract a second marriage, disregards her first one and her oath by marrying a second time, without having previously had a guardian appointed for her said children, renders her account, and discharges all indebtedness, the law not only subjects her own property to hypothecation for the benefit of her children, but also that of her second husband; and it excludes her from the succession of any deceased child under the age of puberty, even though she may maintain that its father substituted her for it. This rule has been established by Our predecessors. We, however, are surprised that when a woman is so wicked as to disregard her oath, and so desirous of contracting a premature marriage as to forget three most important things, the wrath of God, the respect due to her deceased husband, and the affection she should entertain for her children, legislators should have subjected her to such a light penalty, when they severely punished a woman who marries before her time of mourning has expired, and thereby manifests but little consideration for her children, establishing this regulation solely through honorable motives, even where the woman has no children; and, where she is so under the domination of her passions, did not subject her to the same penalties to which those women are liable who marry a second time before their term of mourning has elapsed. Hence We decree that, hereafter, when women presume to perjure themselves in this way, they shall be liable to all the preceding penalties which We have previously formulated with reference to widows who marry before their term of mourning has expired, that is to say, infamy and other punishments. We, however, grant them the power to release themselves from these penalties in the same manner as the others are authorized to do, namely, by petitioning the Emperor, and giving half of their property to their children without reservation of the usufruct; and We place the woman who has thus prematurely contracted a second marriage, and the one who has married before her term of mourning has expired, in the same category. But where a woman who is administering the guardianship of her natural children (for We also have authorized her to do this) marries a second time, and does not do what is hereinbefore prescribed, she shall be liable to the same penalties. When a woman who is discharging the duties of a guardian desires to marry a second time, provision shall be made in the provinces by the Governors of the same, and here by the Most Glorious Prefect of the City together with the Praetor having jurisdiction, for the appointment of a guardian for her minor children; and she must render her account, and discharge all indebtedness incurred by reason of the trust.

CHAPTER XLI.

THE LAW OF ZENO, RELATING TO A LEGACY SUBJECT TO A CONDITION LEFT
BY A FATHER OR A MOTHER TO HIS OR HER CHILDREN, IS HEREBY CONFIRMED.

We adopt the Constitution of Zeno, of pious memory, which provides that when a father is directed to bequeath to his own son a legacy either under a condition, or at some specified date, security to preserve the legacy can only be required of him in case he marries a second time, for the obligation to furnish it is among the penalties imposed upon a husband who contracts a second marriage.

CHAPTER XLII.

CONCERNING ECCLESIASTICS WHO CANNOT MARRY.

Where any member of the most reverend clergy (We refer to those above the rank of reader and chorister) contracts a marriage, We decree and desire that he shall be expelled from the priesthood. If a reader should marry, and then, through some inexorable necessity, should marry again, he shall not be raised above the rank of reader, and his affection for his wife will be an impediment to his promotion; but where a layman is about to be ordained a deacon, a subdeacon, or a priest, and it should subsequently be ascertained that he had married a woman who was not a virgin, but who had been divorced, or with whom he had formerly lived in concubinage, or if he who is about to be ordained has married a second time, he shall not obtain admission to the priesthood, and if he should obtain it by concealing the facts, he shall, by all means, be expelled.

CHAPTER XLIII.

WHERE A HUSBAND LEAVES PROPERTY TO HIS WIFE ON CONDITION
THAT SHE DOES NOT MARRY AGAIN ; AND CONCERNING THE LEX JULIA MISCELLA.

The matter which follows is of great antiquity, and has received many corrections, not only by others but also by Us, without, however, being rendered perfect; for which reason We now, by way of amendment, establish the present rules. The ancient law, styled the Lex Julia Miscella, enacted with a view to the procreation of offspring, permitted women, even where their husbands had left them something on condition that they should not marry a second time, to do so, and to swear that they acted for the benefit of their children; and even where the woman married within a year the law authorized her to take what was bequeathed to her. Where, however, she allowed the year to elapse without marrying a second time, the law did not permit her to obtain the legacy without furnishing security that she would not marry again. It was not Julius Miscellus who caused this to be enacted, but Quintus Mucius Scffivola, who was instrumental in having security furnished in cases where prohibitions of this kind existed. Therefore We, being aware that the large majority of women who had sworn not to marry again were induced to do so not for the purpose of having children, but through necessity, thus disobeying the directions of their deceased husbands, have thought that the more sacred part of this law should first be corrected, and the opportunity for committing perjury removed, and hence that they should not be required to take an oath, and thereby be tempted to swear falsely. For it certainly was not the intention of. the law that women who have no children, as well as those who have, should be sworn, a proceeding which was offensive to God, as well as insulting to the memory of the deceased husband, when it was so easy to commit perjury, especially when the procreation of children was so largely dependent upon chance. Therefore, as We have by this Our law excused women from taking the oath under such circumstances, and authorized them to receive what was left by their husbands, We have considered it advisable (as this is something which has also been omitted by Us) to make provision with reference to the memory of the deceased husband. Hence We promulgate this law, for We do not desire the wills of deceased persons to be set at naught, or their widows to obtain anything which is illegal; for if We should say that a woman must, by all means, comply with the wishes of.her husband by not marrying a second time, the law would with reason be considered too harsh; but, on the other hand, it would be too indulgent if it permitted her to marry again, and also to receive what was left to her; for it would be a most flagrant offence to treat the wishes of the deceased husband with contempt, and insult his memory, if permission were given to his widow both to receive the legacy and to contract a second marriage.

CHAPTER XLIV.

Wherefore We decree that when a husband forbids his wife, or a wife her husband (for the same rule is applicable to both) to marry a second time, and bequeaths a legacy under this condition, the spouse who was entitled to it shall have the choice of two things, namely: either to marry again and renounce the legacy, or if she should be unwilling to do this, and wishes to honor the memory of the deceased, always abstain from marrying a second time.
(1) But to prevent the matter from remaining in suspense, and, besides, in order that the return of the legacy may not be required after the lapse of a certain time, it seems to Us to be proper for the person entitled to the legacy to demand it before the expiration of a year, provided an exception is not made in his case on account of his entry into the priesthood, since he can then entertain no hope whatever of marriage.
(2) When, however, the year has expired, We permit the person to whom the legacy has been left to receive it, not absolutely or simply, but where it consists of immovable property, the legatee cannot acquire it without furnishing juratory security, and by encumbering his or her own property (which We give authority to be done tacitly under the terms of this law), and if the said person should contract a second marriage, he or she must return what was given, as well as any profits that may have accrued in the meantime.
(3) But where the property is movable, the person entitled to it, if solvent, can obtain it by providing the same security and hypothecation. But when restitution takes place, the property must be returned in the same condition in which it was when received, or indemnity must be furnished for any diminution in value which may have taken place.
(4) When the legacy consists of money with the interest which can be obtained from it, the person entitled to the same must furnish juratory security. Where, however, it was not absolutely given, but only the use of it, interest shall be paid to the legatee at the rate of four per cent.
(5) When the legatee is not a person of means, a surety will be required; and if he or she is unable to furnish one, then juratory security must be given, and the hypothecation of his or her property will take place (as has already been stated).
(6) As soon as the legatee has married a second time, whatever was given to him or her can be recovered by the person who gave it, or his representatives; and We order that this rule shall be observed in every case of restitution, whether the property be movable or immovable.
(7) When what has been bequeathed consists of money, and the legatee is not solvent, and cannot furnish a surety, and is himself unworthy of credit, the money will then remain in the hands of the person charged with its payment, and will bear interest at four per cent until the legatee becomes solvent, or contracts a second marriage (or until the accumulation of interest exceeds the capital), or until it becomes clear that the legatee will never marry again either through his or her entrance to the priesthood (in which instance nothing shall be paid), or in case of death; for then the heirs shall be entitled to the legacy without being required to refund the interest.
(8) We have introduced this provision, which shall apply not only where married persons have made bequests reciprocally under such a condition, but also where a stranger has left a legacy to either the husband or wife conditionally, as aforesaid. This law shall be executed in accordance with its nature, whether the payment of the legacy or its restitution is involved. This is what We have decreed with reference to the constitutions recently promulgated by Us on account of the Lex Julia Miscetta; but the other kinds of legacies will take effect in accordance with the terms of the donation, and in conformity with the provisions which We have prescribed.
(9) The security above mentioned by Us shall be given to the heirs or their substitutes, or to those to whom they have been bequeathed, where there is a partial appointment, or portions of legacies are left, and when there is a donation mortis causa, the security shall be furnished entirely to the heirs. Where, however, an heir has been appointed to the entire estate under such a condition, security must be given to the substitutes, if there are any, or, by all means, to those who are called to the succession in case of intestacy, so that the law may everywhere be perfect in all its details, unless the testator directed that the person to whom he left something by special appointment or the whole estate, or a legacy, a trust, or a donation mortis causa, shall receive it without giving any security; for the wishes of the deceased must be complied with, and it is Our earnest desire to observe them whenever they are in accordance with law.

CHAPTER XLV.

CONCERNING THE ADMINISTRATION OF DONATIONS MADE
IN CONSIDERATION OF MARRIAGE.

As We have heretofore made very few provisions with reference to the security of property, and as We are aware that a law of Leo, of Divine memory, relating to second marriages, provides that where a woman marries a second time, and cannot furnish a surety who will be responsible for the transfer of the property to her children, she shall be entitled to the interest on the same at the rate of four per cent, We now enact the present law, which is better than the one referred to, and makes a distinction in conformity with what has been established.
(1) We decree (as We have already done in a preceding constitution), that where anyone offers as an ante-nuptial donation property which consists entirely of immovables, the mother shall have a right to the use of said property after she contracts a second marriage, and she must accept, and not refuse it, but she cannot exact interest from her children in proportion to the value of the same; and she must exercise the same diligence as if the law had granted her the entire ownership of the property, and must preserve it for her surviving children as required by law; or if all of them should die, she must, in accordance with Our law concerning children who are no longer living, preserve it for the benefit of their heirs.
(2) Where, however, all the donations made on account of marriage are composed of money, or other movable property, the mother will be entitled to interest at four per cent, as the security previously referred to does not require money to be paid by the children unless it is certain that there is sufficient gold, silver, clothing, or whatever else was given to her out of the estate of the husband, to do this; for, under such circumstances, We grant the mother the choice of accepting the donation by furnishing a bond with a surety, or of receiving the interest at four per cent, as established by the ancient laws as well as by Our own.
(3) Where, however, the property is of different kinds, and the donation is composed of money as well as of immovable property, the immovable property shall, by all means, remain in the hands of the mother, in order that she may obtain her maintenance therefrom. But, so far as the movable property is concerned, the rule which We have formerly promulgated shall apply, in case the entire donation comprises this kind of property; and the woman must be careful not to neglect the immovable property, and to restore whatever she has received without it having suffered any deterioration.

CHAPTER XLVI.

CONCERNING THE SUCCESSION OF MOTHERS TO THE ESTATES OF THEIR CHILDREN,
TO WHAT SHARE OF THE SAME THEY ARE ENTITLED, AND HOW THEY CAN ACQUIRE IT.

What We have heretofore provided impels Us to treat of the succession of children, to which mothers who contract second marriages are entitled. We have always promulgated a law with reference to these matters, which was addressed to Hermogenes, of glorious memory, Master of Our Imperial Offices, and dated the seventeenth of the Kalends of April, before the Consulate of the Glorious Belisarius; by which We authorized a mother, along with the brothers of the deceased, to be called to the succession of a son who died without issue, and granted them the undisputed ownership of the property, as well as the use of the same, whether an heir was left in the first place, or she had afterwards married a second time, and this law annuls all others which provide anything in contradiction to it. We order that this Our law shall remain in full force solely with reference to parents who marry again; and We preserve for them indisputably any property which they may have received from their children either before or after having married a second time, where the said property has descended to them. This, Our present law, applies to women who may hereafter contract second marriages. Hence when a child of either sex dies, whether it makes a will or not, whatever he or she does must be taken into account. We shall, in the first place, discuss cases where property is left by will, and then proceed to its disposal in case of intestacy.
(1) Therefore, when a son has disposed of all or only a portion of his estate in favor of his mother by will, she shall be entitled to it (because We desire that in every instance the wishes of deceased persons should be complied with), and she shall have what was left to her, whether the ownership of the property or merely the usufruct of the same was bequeathed. Moreover, it shall be lawful to leave the property to a stranger, and the second marriage of the woman will not in any way prejudice the heir; so, where anything is left to the mother, either through a testamentary appointment, or by a legacy, both the ownership and the usufruct can be bequeathed, whether the property comes to her from her father, or from some other source; nor can her brothers, on this ground, dispute the validity of the bequest.
(2) Where, on the other hand, a child dies intestate before or after its mother has contracted a second marriage, the latter shall be called to the succession with the brothers of the deceased son or daughter, in accordance with Our Constitution having reference to successions in case of intestacy; but the mother will only be entitled to the usufruct of property obtained by the son from the estate of his father, whether she marries before or after the death of the former. So far as property derived from another source than the paternal estate is concerned, the mother shall be called to the succession in the way which We recently stated ought to be corrected. These rules which We establish have reference to property other than that included in the ante-nuptial donation. For We order that what has been decreed by Us in this respect, as well as what has been provided by the Constitution of Leo, of Divine memory, shall remain intact, in accordance with which the mother will only be entitled to the usufruct of the property.
(3) With reference to any other acquisition by the mother, which does not form part of the donation on account of marriage, whether the child acquired it through the medium of his father or otherwise, by will, or ab intestato, We decree that ungrateful children shall continue to be excluded from the succession to such property when their ingratitude is established; but We preserve intact all other provisions relating to the succession of parents to the estates of children, or of children to those of their parents.
(4) We consider ingratitude to be a cause of exclusion from inheritance, not only when it is displayed against the mother, as has previously been stated by Us, but also when exhibited toward the deceased brother himself.

CHAPTER XLVII.

As We are aware that many contentions often arise among brothers, We do not permit one who has shown himself to be ungrateful towards his brother to share in the succession to the latter's estate. This rule will also apply where anyone has attempted the life of his brother, or has brought a criminal accusation against him, or has attempted to deprive him of his property; for, under these circumstances, his share will pass to his surviving brothers and his mother. This law, which relates to the succession of children to which brothers are called, along with their mother, shall remain in force subject to the amendment which was made by Us with reference to widows who in the future may contract second marriages. As for women who have already married a second time, and can enjoy the benefits of Our above-mentioned law, they shall be entitled to the succession either by will or in case of intestacy, both as respects the ownership of the property and the usufruct of the same, and are fully authorized to alienate, bequeath, and transfer it, without any impediment being placed in their way by the present law at any time.
(1) We hereby confirm what We have enacted in a former law with reference to the issue of former marriages. For if an antenuptial donation which the mother obtained from her husband should happen to fall into the hands of her dying son, and hence become a part of his estate, his mother who succeeds him will not be entitled to the absolute ownership of the property comprised in the said antenuptial donation, but will only enjoy the use and usufruct of the same as long as she lives. Hence this provision shall continue to be operative in favor of the issue of former marriages, unless some settlement was made either by means of a judicial decision or a compromise before the aforesaid constitution took effect.
(2) In accordance with the terms of the Tertullian Decree of the Senate, the mother was excluded by a male child from the succession to her son, and was placed in the same position as the daughters. We, however, while not questioning the claim of the sons, hereafter grant the mother the legal right to their succession, and call her, along with the brothers of the deceased, to succeed to an equal share of the estate, no matter how many children there may be, so that she will obtain as much as each of the brothers. We establish the same rule where there are both brothers and sisters. Where, however, there are no other heirs but the mother and the daughters, the same Decree of the Senate gave half of the estate to the mother and the other half to the sisters, no matter how many of them there were. As We have not yet changed this, We do so now, and in this instance call the mother to the succession pro rata with the children; that is to say, she shall receive out of the estate of the deceased son a share equal to that of each of his sisters; and, under all circumstances, she shall be entitled to an equal share (which is the law), whether there are only male or only female heirs, or whether they consist of members of both sexes.

CHAPTER XLVIII.

PARENTS SHALL ENDEAVOR TO PRESERVE EQUALITY AMONG CHILDREN
BY THE FIRST AND SECOND MARRIAGES.

We have thought proper to add what follows to this law. Hence if a husband or wife should die and leave children, the issue of a first and second marriage (which was contracted after the enactment of this law, for by it We are providing for the present), We have directed that under such circumstances any gain acquired by the marriage of which the children are the issue shall be preserved for them; and We have also designated the shares that parents should leave to their legitimate offspring who are not ungrateful, but it would not be just that their entire affection should be manifested for children of the second marriage by giving them all the remainder of their property, only leaving to those who were the issue of the first marriage that to which they were legally entitled, and bequeathing all the rest to the issue of the second; for it is only just for something more to be left to the children of the first marriage than what is authorized by law. Where, however, the parents entertain such an affection for a child born of either the first or the second marriage that they wish to give it preference over the others in the possession of their estates, We grant them permission to do so, but they must proceed in such a way as not entirely to diminish the shares of some and increase those of others; and, when favoring the children of the second marriage, they must be careful not to absolutely forget those of the first, and not violate the rule that Our predecessors established on this subject; for when fathers distribute their estates between the issue of two marriages, they should remember that all of them are their offspring, and this should induce them to make a proper division of their property by will. For as the law calls them all equally to the succession of intestates, it is proper for them to imitate the law, and not impoverish the children by depriving them of too large a share of their estates; as they should show themselves to be good parents and worthy of Our legislation, and they should be just in the observance of the law. If, indeed, they should leave them anything over and above what the law prescribes, they will prove themselves to be at the same time just and humane. We do not include both grateful and ungrateful children in this statement (for We have already frequently spoken of those who are ungrateful), but We refer to such as are more or less beloved by their parents, as a great difference exists between children who are guilty of ingratitude and those who cause themselves to be beloved, as well as in the way in which both of them treat their parents. Hence when We discussed the equality which parents should observe in the distribution of their estates among their children by the first and second marriages, We exhorted rather than ordered them, because, having elsewhere increased for all the share which was absolutely to be left to children in case of intestacy, and fixed the amount at four-twelfths of the paternal estate, where there are four children, or less, and half of it, where there are more than four, We have thereby given the children a sufficient consolation, and have relieved them from the poverty to which, according to the ancient apportionment, they were liable to be subjected.
(1) Therefore the present law, as We have frequently stated, is only applicable to the future, and has no retroactive effect, but, consolidated and included under one heading, it regulates almost everything concerning second marriages, and maintains in full force all preceding enactments, as well as explains matters having reference to second marriages, concerning which it introduces a nice and beneficial distinction. Hence, as has already been prescribed by Us, all these things will be embraced in a single constitution, which will be sufficient in every case in which such questions are involved.

EPILOGUE.

Therefore Your Highness will order this law to be published everywhere in your jurisdiction, so that all persons may know that We have devoted Ourselves to labors even greater than Imperial meditations, that We only attempt to provide for Our safety by collecting from every source the principles of justice, and that all persons may see that everything relating to this legislation is condensed under a single head, and learn that We have preserved laws formerly promulgated, and which We now confirm and declare shall be valid in the future.

Given at Constantinople, on the fifteenth of the Kalends of August, after the Consulate of Belisarius.

Copies of this Constitution have been addressed to Patricius, Most Glorious Prefect of this City; to Basilides, Most Glorious Master of the Imperial Offices, Ex-Consul and Patrician; to Tribonian, Most Glorious Quaestor, and twice Consul; to Germanus, General of Cavalry, Ex-Consul and Patrician; to Tziga, Most Glorious General of Infantry, Ex-Consul and Patrician; and to Florus, Most Glorious Count of Private Affairs, and Ex-Consul. Your Excellency, when informed of the Constitution which it has pleased Us to promulgate, will cause it to be published in Your Court, not only to the advocates, but to other persons under Your jurisdiction, and they must all observe it, as communicated to John, Most Glorious Praetorian Prefect of the East, twice Consul and Patrician.

Given at Constantinople, on the fifteenth of the Kalends of April, after the Consulate of Belisarius.