CONCERNING RESTITUTIONS, AND WOMEN WHO HAVE CHILDREN AFTER THE ELEVENTH MONTH FROM THE DEATH OF THEIR HUSBANDS.

  The course and variety of human nature requires attention from time to time, and it cannot be properly maintained (although its first principles may be unchangeable) unless what specially interferes with it is removed, and it is allowed to proceed in tranquillity and peace in conformity to the law. Considerations of this kind have impelled Us to promulgate the present Constitution, for We are aware that, for a long time, doubts have existed as to the transfer of property left under a trust, and when the person charged with them has consented to the hypothecation of the property, the question arose whether he had been able to encumber what was liable to transfer, or only what was his own, a distinction being made between the words used by the deceased; as the case was held to be different when he directed the simple transfer of property acquired after the death of the trustee, from that where he had expressly provided that his entire estate, with the sole exception of the legitimate fourth, should be delivered. Hence the rule was established that the private creditors of the trustee could bring suit to recover the property left in trust, and could employ several different means of obtaining possession where the parties were insolvent. We have recently remedied this evil by the enactment of a law which forbids the alienation or encumbrance of property left under a trust, providing that it shall follow the fortunes of the trustee; that is to say, that it cannot legally come into the hands of anyone, but shall always pass to him to whom it ought to be delivered. This law, although somewhat ancient, and constantly observed in judicial proceedings, confirms what We have said in the beginning; still time has shown (as almost always happens) that it is susceptible of amendment, for both men and women who have been injured have applied to Us for relief. Among other instances, where a husband was dead, his wife claimed both her dowry and a share of the ante-nuptial donation, to which she was entitled by his death; and, on the other hand, the husband's brother, basing his claim on the will of the common father, demanded the estate of the deceased, and seized the woman's dowry, giving a reason for this that his brother had squandered it, and that there was property forming part of the paternal estate in the possession of the widow, of which the common father had ordered delivery to be made to him, in case his brother did not leave any children. He persisted in claiming the entire estate, and demanded the execution of the law having reference to such cases; the woman, however, in her turn, very justly complained that it was inequitable that her brother should, by means of fraud, become possessed of all her dowry, and alleged that if she had happened to die first, her husband would have obtained the ownership of the property, in accordance with the marriage contract; and that it was not proper that, if her husband died without knowing what he was obliged to deliver, she should be responsible; and a decision was rendered upon this point which We believe to be just. In another instance, a husband had recourse to Us, stating that the estate of his wife had been transferred by substitution to her children, and that she had directed a very small amount to be reserved for herself, and thus he ran great risk of having his own property rendered liable for the restitution of the dowry and the dotal profits agreed upon in the contract relating to the ante-nuptial donation, without his being permitted to retain any of it whatever. We have very properly been moved by these complaints, and considered it more advisable to amend Our laws than to expose Our subjects to risk, above all where the marriage state is concerned, which no other condition more beneficial to mankind exists as it affords them the sole means of procreation.

  For the reasons above mentioned, We publish the present law, without changing any of the provisions which We have formerly adopted; and the only change We make is that when anyone hereafter delivers property which he is charged to transfer, he can reserve from said property the lawful share of his children, who, instead of the fourth (for- We have amended this rule, as We do not approve of such a small amount), shall have the third or half of the estate, dependent upon their number; but if this legitimate share is not sufficient to provide for the dowry or ante-nuptial donation of the children of the trustee, he shall be allowed to reserve from the remainder of the property subject to delivery under the trust whatever may be necessary (in accordance with the rank and position of the parties interested), in order to make up the amount of the dowry or ante-nuptial donation. We decree that the property mentioned in the marriage contract shall, by all means, be exempt from transfer under the trust, and that any property which has been substituted can be alienated or hypothecated on account of the marriage. And in case either a husband or wife is charged to deliver the property under the trust, if it is the husband, he shall be permitted to reserve the ante-nuptial donation, or the one given in consideration of marriage, without being obliged to surrender it; and if the wife is the trustee, she can, in the same way, deduct her dowry; for We prefer what is to the advantage of all to the special interest of individuals. This is the privilege which We have granted in favor of the deduction of ante-nuptial donations. For if exceptions to general hypothecations existed before Our reign (which certainly was not so advantageous), why should We not authorize a measure which, in cases involving gain through marriage, is still more beneficial ?
  (1) Therefore, what We order shall in the future only be available, and applicable to the delivery of property which takes place after the enactment of this law, for We do not permit any wrong to be done; so that where a woman has a dowry of trifling value, and afterwards learns of the existence of this law, or where a man has made an antenuptial donation of a small amount, and either of them desires to increase what he or she has given for the purpose of evading the said law, and by this means to obtain what they wish from the property left under a trust, We forbid such a fraudulent practice, and decree that the acts of persons wishing to make such an increase shall be invalid so far as any diminution of the trust is concerned, and that Our law shall remain inviolate for the future. This is the first chapter of the present law.

  Three constitutions promulgated by Our predecessors with reference to women who marry a second time before the year of mourning has expired, prescribe penalties for an act of this kind. We have also recently enacted a law with some amendments, and have touched upon this matter briefly in a certain part of Our legislation, but a most disgraceful occurrence occasionally takes place, which We are unwilling shall continue to exist during Our reign, and We have very properly decided that it must be corrected. The following is an example of this evil. A woman who had not been chaste during the lifetime of her husband brought forth a child before her year of mourning had elapsed, and more than eleven months after his death; under these circumstances it is not possible to say that the child belonged to the deceased, for conception does not extend for so protracted a period. And as one of the penalties of premature marriage is that the wife shall immediately lose both the usufruct and the ownership of the ante-nuptial donation bestowed upon her by her husband, the children injured by this extraordinary delivery of their mother have a right to claim the ante-nuptial donation given to her, and can also demand that she obtain nothing from the estate of the husband, whose memory she has been so ready to disgrace. The woman answered (but how can We quote her words without blushing?) that she did not deserve to forfeit the ante-nuptial donation ; that she was well acquainted with the laws regulating legitimate marriage; that she had never contracted any other marriage than the first one; and that the child whom she had brought forth was only the result of her natural inclination to concupiscence. As there is no doubt that this woman who had abandoned herself to debauchery merited penalties ten thousand times more severe, she shall not be exempted from those to which she rendered herself liable; hence (for We come to the relief of the children of the deceased husband), We desire her to be subjected to the loss of the ante-nuptial donation, as legally provided in such cases with reference to women who marry before the term of mourning has expired. For if this law does not release women from responsibility when they contract legitimate marriages, for the reason that it causes a suspicion to arise that they have hastened to contract a second marriage because of having been unduly intimate with their second husbands during the lifetime of those now dead, why should We leave this woman unpunished, when, in the first instance, there is merely a conjecture, but in the second unquestioned proof exists, and the offence is established beyond doubt by this most abominable of all births ?
  (1) Wherefore We decree that if a woman should bring forth a child before the term of her mourning has expired, so that there can be no doubt that it is not the issue of the first marriage, she shall, by all means, be deprived of the ante-nuptial donation (this applies both to the ownership and the usufruct of the same), and she shall also be subjected to all the other penalties, just as if she had contracted a legal marriage before the expiration of the year of mourning. For licentiousness should not enjoy more advantages than chastity, and the woman must be punished, and suffer the loss of the donation on account of her debauchery; and We establish this rule in order that women may not be induced to contract untimely marriages, or disgrace their former ones by still more wicked behavior.

  Your Highness will, by formal proclamation, communicate to all persons the matters which it has pleased Us to enact, and which are set forth in this law.