| THE
ENACTMENTS OF JUSTINIAN. THE NOVELS. |
| ~ LXXXIX ~ |
IN
WHAT WAY NATURAL CHILDREN BECOME LEGITIMATE, AND CONCERNING THEIR SUCCESSION
TO THEIR FATHERS EITHER UNDER THE TERMS OF A WILL OR IN CASE OF INTESTACY. |
|
|
( 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. |
|
In
former times, the attention of Roman legislation was not directed to
natural children, nor was any humanity manifested towards them,
but their name was considered to a certain extent foreign to the Republic;
but during the reign of Constantine, of pious memory, they were mentioned
in the Books of Constitutions. Then the Emperors, proceeding by degrees
to a greater exhibition of indulgence and clemency, promulgated laws
with reference to them; some permitted them to be given and left property
by their fathers; others devised the method by which, being removed
from their condition of natural children, they became legitimate, and
heirs to the estates of their parents. This legislation was gradually
extended until it included grandchildren, and as these laws have been
observed in Our time as well as under the reign of the Emperors who
have immediately preceded Us, they have been interpreted in many different
ways. We have had the double privilege of conducting many persons from
slavery to freedom, and of raising natural children to the rank of those
who are legitimate; for neither vengeance nor interdiction should render
them objects of contempt, but what is necessary should be attended to,
what is evil should be avoided, and in every instance what is best should
be accomplished. Therefore, for the reason that in the Code of Constitutions
which We have compiled from the entire legislation of former Emperors,
certain provisions have been made with reference to natural children,
and others, since inserted in the Book of Institutes which We have drawn
up, have been decided to be complete; and as We Ourselves have adopted
many rules with reference to this subject, some of which have been embodied
in former laws, and others promulgated subsequently, in order that this
legislation may not be dispersed, We have thought it proper to combine
it all in one Constitution, which may be sufficient to maintain the
rights of all natural children, and to correct and establish whatever
relates to them. |
| CHAPTER
I. CONCERNING NATURAL CHILDREN. |
|
It
is clear that there are some men who are at once free and legitimate;
others who do not enjoy freedom at first, but afterwards have it conferred
upon them, and in this way from being slaves become free, and from being
natural children become legitimate; others again, by the very fact that
they are natural children, are entitled to certain successions; and
still others do not deserve to be called natural, but are considered
to be unworthy of this name. Hence it is necessary for Us to promulgate
a constitution, in order that no one may be ignorant of the legal position
of natural children; and, in beginning this law, We shall state in what
ways natural children become legitimate (for We have found numerous
methods by which this can be done), what their rights of succession
are, how harshly ancient legislation has treated them, and how humanely
We have acted with reference to this matter. Nor shall We neglect those
who, as We have previously remarked, are unworthy of the appellation
of natural children. For in the first place, before any laws had yet
been enacted, Nature, in sanctioning the procreation of children, treated
them just as if they
were free and freeborn. The children of Our first parents were originally
all free and legitimate from their birth, but wars and legal controversies,
as well as licentiousness and concupiscence, brought about a different
condition of affairs. For slavery was a consequence of war, and loss
of chastity was the cause of natural children; but the law, again taking
cognizance of faults of this kind, bestowed freedom upon slaves, treating
the subject at great length, and introducing ten thousand methods of
liberating them, while the Imperial Constitutions have opened different
ways for legitimation to those who were not legally begotten. We do
not promulgate this decree with the intention that it shall be temporary,
nor do We desire the rights of Our subjects to be neglected by its provisions. (1) Men leave lawful successors through the marriages which they contract, either with or without dotal instruments; even when they are united with their wives in such a way that they have, from the beginning, such an affection as proceeds from lawful wedlock. We, being well aware that this sometimes gives rise to litigation, do decree by this law that proof of legitimate marriage shall take place in compliance with the prescribed forms, when the parties concerned are of high rank; and in another way when they are of an inferior social condition; and We also decree what privileges shall be granted to the people hereafter with reference to this subject. Therefore, where marriage has taken place, successions from this very fact are certain, and when the children are legitimate, the law immediately introduces certain degrees of succession, treating these at great length. This, then, is the right of legitimacy. When this condition does not exist, but the child is free, although it may not be the issue of lawful marriage, or was even born in slavery, if it is worthy of freedom, it, nevertheless, remains natural; and under such circumstances various methods are employed to render it legitimate, which We shall hereafter enumerate, as well as establish others. |
| CHAPTER
II. CONCERNING THE FIRST METHOD OF LEGITIMATION, THAT IS TO SAY, BY AN OFFER MADE TO THE CURIA. |
|
The
first method of obtaining the right of legitimacy, and which is extremely
advantageous to municipalities, is the one which Theodosius, of pious
and recent memory, introduced. For it was decreed by him that one can
offer any or all of his natural children to the curia, or marry
his daughters to decurions; but as this method was not prescribed by
ordinary legislation, but became established in different ways through
obligations to the curia, and by means of successions, as well
as on account of the necessity of ascertaining the right of children
to inherit, whose heirs they are, and, again, who are to inherit from
them, We think that in drawing up the first chapter of legislation on
this subject, it is only just to treat of other methods of legitimating
children, which are very easy to explain. (1) Therefore, where anyone is the father of natural children, whether he himself be a decurion, or free from duties to the curia, or whether he has other children who are legitimate, or only natural ones, he shall be permitted to offer all his natural children or only some of them to the curia, even though the said children may have been invested with a distinguished office; provided, however, that this office is not one which will release men from curial obligations. But where the father, while still in his lifetime, offers his son to the curia (for this method has been employed in the case of Philocalus, a natural son, and a decurion through his father, in the City of the Bos-terni), as is stated in the constitution enacted by Leo, of pious memory; or where anyone has been proclaimed a decurion by his father in this way; or where a father offers his son by having his name inscribed in the Bureau of Public Documents; or where at the time of his death he inserted in his will that his son must become a decurion, and he afterwards attached his signature to the instrument, his son will immediately become legitimate, and will no longer be subject to the disabilities attaching to natural children. Such children will also become legitimate and decurions if, after the death of their father, who left no lawful issue, they should offer themselves to the curia. Hence the father, although he may have legitimate children, can offer his natural children to the curia, but a natural child cannot do this himself except when there is no legitimate offspring living. We also include in this law whatever has reference to offers to the curia, a subject which has previously been treated by Us in a desultory manner, for We do not merely provide for an offer to the curial status, as it is necessary to introduce methods which are perfectly clear, by means of which children may be offered as aforesaid. (2) Therefore, anyone born in any town whatsoever, whether he be a decurion, or free from this condition, shall be permitted to offer his natural son to the place of his nativity. But where he is not a citizen, but was born in the country, or in some village, the son can be offered by his father to the city, or he can offer himself to the curia of the town to which the said country or village is tributary. It is, however, evident that if the father, grandfather, or any other relative in the ascending line has free children and desires to offer them to the curia, he can do so; but where the child wishes to offer himself, We do not permit this, unless he has no other legitimate brothers. If, however, any one of those desiring to offer their natural children to the curia was born in this Capital, or in ancient Rome, We permit him to make the offer in whichever metropolis he may select; and he must observe these rules everi with regard to his daughters, and shall be required to marry them to decurions who are either residents of the city where he was born, or of that to which the country or the village which is his birthplace pays tribute; or, where the father is at the same time free and a Roman or Byzantine citizen, he must marry his daughters to decurions of any other city, provided it is a metropolis. Such is the solicitude which We evince for decurions, and this method of legitimation is pleasing for the reason that We grant exclusively to a father who has only natural children (even though he may have them by a slave) the power of making them free, and of offering them to the curia, as has just been stated. We direct this law to become operative to such an extent that if his father should not make the offer, but the son should become free, he can offer himself to the curia, even though he may not be the legitimate offspring of his father. |
| CHAPTER
III. CONCERNING THE SUCCESSION OF DECURIONS. |
|
And
as various provisions have been enacted with reference to the succession
of persons of this description, it does not seem absurd to Us to determine
their hereditary rights, as We have already stated. Hence if a natural
child should become a decurion by means of this method (that is to say,
through being offered to the curia), he will become the heir
of his father both by will and in case of intestacy; he will not differ
in any respect from legitimate children; and he will be entitled to
property through a donation of his father; still, he will not have a
right to more than the smallest share of any of those children who have
always been legitimate. When children have once been offered to the
curia, they are immediately raised to the rank of legitimate
offspring, but We do not permit them to reject the estate of their father,
or refuse to accept a donation made to them and which they are empowered
to receive, nor to renounce their status. Therefore they will continue
to be decurions, and, as We have previously stated, will be entitled
to the share which has been either left or given to them. (1) If, however, the children have, from the beginning, rejected the offer to the curia, preferring to remain free but natural children rather than to become more powerful and decurions, and if it should afterwards be ascertained that they either possess, or have alienated all or a portion of the property which has been given or bequeathed to them, they shall, even against their will, be strictly required to fulfill their curial obligations; otherwise We must consider them as fraudulently evading Our legislation by attempting to appropriate to their own use the property acquired through the offer to the curia, and as refusing to comply with the conditions by means of which they have obtained this advantage. We decree that these rules shall be applicable not only to males offered to the curia, but also to females who marry decurions, for it makes no difference whether a father complies with curial obligations through the instrumentality of his male children, or through that of his sons-in-law, and that he desires, by means of the issue of the latter, to add others to the number of the former decurions. |
| CHAPTER IV. |
|
We
decree that a son rendered legitimate in this manner shall be such only
so far as his father is concerned, and shall not legally be connected
with his father's relatives (We mean by this those to whom the father
is born, his collateral relatives, and his descendants), for We make
the said son a cognate by means of a legal fiction. We direct that where
a natural son is offered to the curia, he becomes the legitimate
heir of his father alone; but We do not intend that this right shall
apply to either the ascendants, descendants, agnates, or cognates of
his father, or that he shall to any extent share in their estates. We,
however, grant him an equitable privilege, for as he does not succeed
to his father's relatives, the latter, on the other hand, can lay no
claim to his succession, unless he may have appointed them heirs, or
has been appointed by them, for those who are offered to the curia
only become legitimate so far as their father is concerned, and are
considered cognates. |
| CHAPTER V. |
| Therefore
provision should be made for those who, having been rendered legitimate,
become successors. If any person of this kind should have children or
grandchildren who are the offspring of lawful wives, and they have been
regularly created decurions, they will by all means succeed to his estate;
for what is more legal than that a son should be called to the succession
of his own father? If, however, he should have children who are not
decurions, then the legal share of his estate will pass to the Treasury
and the curia, and the remainder, no matter how much it may
be, will go to the children who are not decurions. But where the deceased
does not leave any offspring whatever, and dies intestate, the curia
and the Treasury will be entitled to three-fourths of his estate, as
We have long since decreed, and the heirs called by law shall receive
the other fourth; or if the deceased made a will, the said fourth shall
be acquired by the testamentary heirs. When the law has once accepted
a decurion, and his name has been inscribed in the registry of the curia,
it grants him rights of inheritance and every other succession or advantage.
But where anyone who is a relative or a stranger happens to be appointed
heir, and desires to apply to the government and to offer himself to
the curia, he shall be permitted to do so. He will then be
entitled to the share of the property allotted to the curia,
and he will become a successor to the status as well as to the duties
of a decurion, provided the municipality consents. |
| CHAPTER VI. |
| Where,
however, a decurion has no legitimate children but only natural ones,
he shall be permitted to appoint them heirs by bestowing upon them the
honor of the curia. The appointment shall take the place of
every offer, and shall not require compliance with ancient laws, or
any offering, as long as the parents are living; and by the very fact
of the appointment of natural children, when they are free, they
at once become decurions and heirs, and will be entitled to three-fourths
of the property of their father, in accordance with the distribution
which the latter may have made among them; but if their father wishes
to leave them his entire estate, it will be better for him to do so;
still, under all circumstances, he must leave them nine-twelfths, being
well aware that if he should leave them any less than this, the deficiency
will be made up by the law out of his estate, and then if the children
are willing they shall become decurions: but if some of them desire
to become decurions, and others refuse, the shares of the latter will
accrue to the others. Where, however, all of them refuse, the curia
shall be entitled to the entire nine-twelfths of the estate, just as
if there were no living children. But if the father should die intestate,
without leaving lawful issue, then the legal share of the estate shall
pass to the heirs at law, and if any or all the natural children desire
to do so, they can offer themselves to the curia, and nine-twelfths
of the estate will pass to him or them who become decurions. Where,
however, the children were the issue of a female slave, and their father
either manumitted them during his lifetime, or offered them to the curia
under his will, they shall be accepted, and become decurions in accordance
with the desire of the testator; or if they wish this to be done, they
can offer themselves to the curia, and shall (as has already
been stated) receive nine-twelfths of his estate; for We wish that,
under all circumstances, whether the father makes a will or dies without
doing so, those who become members of the curia shall receive
nine-twelfths of his estate. But where the father only manumitted his
children, and did not offer them to the curia, and either all,
or some of them, wish to become members of it, then the nine-twelfths
of his estate shall be given to him or them who become decurions. When
none of the natural children either desires to become a member of the
curia, or is offered to it, the curia shall be entitled
to nine-twelfths of the father's property. For it is perfectly clear
that the Treasury enjoys this right as laid down by the constitution
enacted by Us. These are the provisions made by Us with reference to
natural children who become legitimate by means of their transfer to
the curia, so far as they relate the manner in which they should
be offered and to their successions. |
| CHAPTER VII. |
| Three
other constitutions have been promulgated, one of them by Zeno, of pious
memory, which did not fully prescribe rules for the future but only
had reference to the past, and this We have permitted to be inserted
into Our Code, in order not to deprive those persons whom this constitution
favored, or their descendants, of the benefit conferred by the same.
So far as the Constitution of Anastasius, of pious memory, which provided
for the adoption of natural children, is concerned, We do not permit
it for the future to cause any annoyance to Our subjects, and We only
allow it to become operative where it is advantageous to different persons,
as We do not wish to be thought
to have deprived anyone of these privileges by means of Our laws. For
it is always necessary to begin by introducing what is beneficial, and
not to annul useful regulations which have previously been established
by legislators. We approve the Constitution of Our Father which recommends
moderation, has been drawn up in an orderly manner, and prohibits the
adoption of natural children; which adoption, however, is extremely
absurd and inconsiderately places certain natural children in a superior
class to those who are legitimate. |
| CHAPTER
VIII. CONCERNING THE SECOND METHOD OF LEGITIMATION BY MEANS OF DOTAL INSTRUMENTS. |
| There
are other methods which have been introduced by Us, and which We shall
enumerate, which grant the right of legitimacy to children who are originally
illegitimate; but We do not discuss their successions, for in rendering
them legitimate We confer upon them the same rights of inheritance as
those enjoy who are legitimate from the time of their birth. Where anyone
has entered into a dotal contract with a freeborn woman, or with a freedwoman
with whom he is allowed to live in concubinage, whether he is already
the father of legitimate children, or has only natural ones, We decree
that marriages of this kind shall be lawful, and that the children born
or conceived before such an union has taken place shall be legitimate,
and that even though after that children may be born, or those who are
already born may die, the first offspring shall, nevertheless, be legitimate.
For the affection entertained for the second children is disclosed by
the execution of the dotal contract, and the father who is induced to
make it himself confers the right of legitimacy upon children born after
the execution of the same, and it would be absurd for any circumstance
favorable to the last children not also to be advantageous to those
born before the contract was executed, and that they should be prevented
not only from enjoying the right of legitimacy but also that of the
inheritance of their father's estate, as the children born after the
marriage become legitimate by operation of law under the terms of the
dotal contract. Hence We make but one disposition of children born before
and after the contract was executed, and We have for the future disposed
of all controversies to which many constitutions gave rise by stating
that although the father may not have had any children after the dotal
contract was made, those that he already has are none the less legitimate.
For as other offspring may be born to him, and he has been able to divest
those, who came into the world before the dotal contract was drawn up,
of the condition of natural children, the proof of his affection for
them gives them the right of legitimacy, and there is no stigma which
it does not effectually remove. (1) In addition to this it is, for good reason, added that, if a child conceived before the dotal contract was drawn up should be born afterwards, it will be the lawful issue of him who was qualified to execute such a contract in conformity with Our former Constitutions; and We have been induced to enact this provision because it relates to the order in which children are born. For as a doubt arose whether it was necessary to consider the date of conception, or that of the birth of children, We hereby decree that not the date of their conception but that of their birth must be taken into account, because of the benefit which will accrue to them by doing so. If, however, it should happen under certain circumstances that the date of conception will be more advantageous to them than that of birth, We then direct that the time which is more beneficial shall be considered. |
| CHAPTER
IX. CONCERNING THE THIRD METHOD OF LEGITIMATION BY MEANS OF IMPERIAL RESCRIPTS. |
| We
also decree that where anyone desires to render his offspring legitimate,
and their mother is no longer living, or if he is greatly attached to
his children and their mother is not without blemish in his eyes, and
he does not deem her worthy of lawful marriage; or because the mother
is dead, or he has no respect for her; or he has been treated badly
by his children who have designedly concealed their mother to prevent
her estate from going to their father who would otherwise be entitled
to it, and to prevent him on the death of their mother from enjoying
the use and usufruct of her property by law, through having children
under his control; under such circumstances where a father who has no
legitimate children, but only natural ones, desires to render them legitimate,
and if (as We have just stated) their mother is dead, or if she is living
but bears an evil reputation; or where she does not appear; or in case
it is impossible for the father to draw up a dotal instrument with her
(as would be the case where either of the parties entered the priesthood),
We grant him authority to legitimate his natural children if (as has
already been stated) he has already no legitimate issue; for as there
are methods of rendering slaves at the same time free and freeborn and
restoring them to the condition of nature, so, if a father has legitimate
children, whether they are the offspring of a freeborn woman or of one
who has been manumitted, and he desires to restore them to their natural
condition of freedom, render them legitimate for the future, and have
them under his control, he can do so by virtue of an Imperial Rescript.
For in the beginning when
Nature alone had power over men, and before any written laws were enforced,
the distinction between natural and legitimate children did not exist,
but the first children born to Our first parents, as well as those who
subsequently came into the world (as We have stated in the beginning
of the present law) were legitimate. So far as offspring are concerned
Nature originally created them all free, and only produced legitimate
children, and as wars were the cause of servitude, so it was the inclination
of mankind to concupiscence which gave rise to the law relating to natural
children. Wherefore, since it is proper to correct similar passions
by corresponding remedies, one has been introduced by Our predecessors,
and the other by Us. (1) Hence, in cases like those above mentioned, when a father leaves the mother of his children in her original condition, he shall be permitted to apply to the Emperor, stating that he desires to restore his offspring to nature and their former freedom and legal rights, and that he desires them to be under his control, and to differ in no respect from those who are legitimate. This having taken place, his illegitimate children shall hereafter enjoy the benefit of legitimation, for We desire to correct unnatural prejudices, and at the same time direct the course of those who have no lawful issue, so that by this brief provision such a violation of natural laws may be remedied. |
| CHAPTER
X. CONCERNING THE FOURTH METHOD OF LEGITIMATION BY MEANS OF THE WILL OF THE FATHER CONFIRMED BY THE EMPEROR. |
| If,
indeed, he who is only the father of natural children has not, on account
of certain accidental circumstances, been able to render them legitimate
in the ways which We have already mentioned, but at the time of his
death desires, under any of the aforesaid conditions, to execute a will
by which his children may become his lawful successors, We grant him
the authority and permission to do so; but the children, after the death
of their father, must petition Us, make a statement of the facts, and
produce the will, and then they shall be heirs according to law, and
shall obtain the gift of legitimation at the same time from their father
and from the Emperor, that is to say, from both Nature and the law. |
| CHAPTER XI. |
| Generally
speaking, We desire that this Constitution shall be applicable to
all children who are rendered legitimate in the ways in which We have
just enumerated. But if fathers are not permitted to relinquish the
right of paternal authority without the consent of their children,
there is much more reason that a child should not be subjected to
such authority against his will, and as if he feared to follow the
fortunes of his father by being placed under his control, whether
through being offered to the curia by virtue of the execution of a
dotal contract; or any other way; and We do not think that either
the legislator or the government should have power to do this. |
| CHAPTER
XII. CONCERNING THE SUCCESSIONS OF ALL NATURAL CHILDREN. |
| Thus
children who are rendered legitimate are to be distinguished from those
who continue to remain natural, and We will now proceed to treat of
the successions of the latter. It pleased Valentinian and Gratian, of
Divine memory, to establish humane rules with reference to this subject;
hence where the father of natural children has legitimate offspring,
the above-mentioned Emperors rendered them capable of acquiring one-twelfth
of his estate along with their mother, and forbade anything else to
be given them by a last will. Where there were no natural children,
they allotted only half of one-twelfth to the concubine, provided always
that the man had no legitimate wife (and they made this provision applicable
to men who had but one concubine). If,
however, the fathers of natural children have no lawful issue, and the
said children have neither father nor mother, they are permitted to
leave or give their own natural children, conjointly with their mother,
a share of their estate, up to one-fourth of the same; and where the
natural children have received more than that amount, the surplus shall
revert to those who are legally called to the succession. This is what
the sons of the elder Theodosius decreed, although they were far from
making it perfect. (1) Therefore We, although We have already enacted a humane law, and have granted to natural children, through the generosity of their father, one-half instead of a quarter of his estate, when he has no legitimate children living, still, for subsequent reasons, after more careful consideration, and desiring to show greater indulgence, We enact the present law. As fraud was frequently committed, which is indeed the case at the present time, We desire to free men from impiety, for certain parents who are not at liberty to leave their natural children as much as they wish select third parties whom they appoint their heirs, and direct to transfer their property to their children. The latter, however, often act in a wicked manner, and refuse to comply with the will of the testator, and (what is considered even more reprehensible) they perjure themselves. We have nothing to say with reference to what has been stated concerning individuals of high rank who, in former times, were guilty of similar offences. (2) Hence, in order that We may not permit things of this kind to be done in the future, and that We may prevent natural children from performing acts that strangers and unknown persons are not allowed to perform, We order, by the present law, that where a father has legitimate issue, he cannot either leave or give his natural children more than one-twelfth of his estate (for We hold that this is the purport of Our former Constitution), and if he should, under any pretext whatsoever, attempt to give them anything more, it shall accrue to the legitimate children, or where there are no natural children but only a concubine, We permit one-twenty-fourth of the estate to be left or given to her. (3) Where the father has no legitimate children, nor any ascendants to whom the law compels him to leave a specified share of his own estate, he will be permitted to appoint his natural children his heirs to all his property, to divide it among them at his pleasure, and to transfer it to them by ordinary or ante-nuptial donations, or by means of a dowry, or in any other lawful way whatsoever. Thus fathers will have no need to avail themselves of the services of a third party who may be inclined to dishonesty or perjury, but they can apportion their estates absolutely under the terms of the will. Where, however, those whom We have previously mentioned have any ascendants, they must leave them the share that We and the law have prescribed, and they will be at liberty to bequeath all the remainder of their property to their natural children. We have made these rules applicable to persons who dispose of their estates by written and legal wills. (4) If, however, anyone should die without leaving legitimate issue (We mean by this children, grandchildren, and their descendants), or a lawful wife, without making any disposition of his estate, and any cognates, or even his emancipator should appear and demand possession of the property, or even Our Treasury should do so (for We do not make any exception of it under these circumstances), and if, during his lifetime, the deceased had lived with a free woman in concubinage and had had children by her (We only make this rule applicable where the concubine resided in his house, or his children did so, and there was no question as to his affection for her), We grant them maintenance and the right to take one-sixth of the estate of their deceased father, in case he should die intestate; which said one-sixth shall be divided by their mother in such a way that the latter shall receive a share equal to that of each child. We establish this regulation where the father lived with a single concubine, or had children either by her or some other concubine, who was either dead or had been separated from him, and whose children resided in his house; for then We grant them the right to claim one-sixth of his estate in case he should die without leaving a will. (5) But in case a man was so given to concupiscence that he had several other concubines in addition to the first, and was in the habit of committing fornication with a multitude of women, who were harlots (for this is the proper expression to use), and when he died had children by them as well as several concubines, a man of this kind is utterly contemptible, and shall, together with his children and his concubines, be entirely excluded from the benefits of this law. For as, when anyone is married to a lawful wife, he cannot, during the existence of the marriage, contract any others, and by reason of them have legitimate children, so, neither after he has acknowledged the concubine in the manner in which We have mentioned, and has issue by her, and is guilty of any other act of licentiousness, We do not allow his children to be admitted to his succession, if he should die intestate. For if We did not provide for this, no difference- would exist between women for whom the deceased had entertained more or less affection, nor would any distinction be made between the children, and We do not enact this law for the benefit of debauched men, but for such as are reputable. Nor do We discriminate between male and female children, because, since Nature made no distinction between them, We do not enact one law for women and another for men. (6) If anyone (for it is necessary to make use of every proper and pious resource) who has legitimate children leaves any natural ones, We desire that the latter shall be entitled to nothing whatever in case their father should die intestate; but We direct that they shall receive from the legitimate children a certain sum for their maintenance, in proportion to the value of the estate of the deceased, which shall be determined in accordance with the judgment of a good citizen. This rule shall be observed even if the decedent had a wife, and his natural children, although they were born of a concubine who subsequently died, shall be supported by his successors. What We have already decreed with reference to natural grandchildren shall remain in full force. |
| CHAPTER XIII. |
| In
cases in which We have called natural children to the succession of
their father, and also in those in which they show proper respect to
their parents, the natural children shall be under the same obligations
to their parents that the latter should entertain for them, so far as
their succession or their maintenance is concerned, as We have previously
provided. |
| CHAPTER XIV. |
| But
as it has already been set forth in certain constitutions that curators
must be appointed for children in order to administer property given
or left to them by their father, and as this rule should be preserved,
We hereby confirm it; granting to the mother (in accordance with what
has already been ordered) the right of administering the guardianship
of the natural children, and of doing in this respect everything which
has been enacted with reference to legitimate issue. |
| CHAPTER
XV. THE OFFSPRING OF INTERCOURSE PROHIBITED BY LAW SHALL NOT BE ENTITLED TO SUPPORT BY THEIR PARENTS. |
| This
last part of Our law demands proper arrangement, and an enumeration
of those who are unworthy of even the name of natural children. And,
in the first place, all children who are born of the intercourse (for
We do not call this marriage), which is either infamous, incestuous,
or prohibited, are not designated natural, and should not be supported
by their parents, nor shall they be entitled to share in any of the
benefits of the present law. Wherefore, although certain provisions
with reference to children of this kind were included in a Constitution
addressed by Constantine, of pious memory, to Gregory, We do not adopt
them, as they have been abolished by non-usage. For this Constitution
refers to Phceniarchs, Syriarchs, magistrates, and illustrious persons,
and does not provide that the issue of these should be natural, but
even deprives them of the benefit of Imperial munificence. We absolutely
repeal this Constitution. (1) These things have been decreed by Us, in order that ignorance of Our laws may not exist, and that all persons may know what children are legitimate and what are natural, and how the latter are rendered legitimate; and that those who continue to be natural should be treated with humanity, and also how they become eligible to certain honors, and in what way they may be distinguished from those who are unworthy of being called natural. |
| EPILOGUE. |
|
Your
Highness will, by means of suitable proclamations, communicate to all
persons the provisions which it has pleased Us to incorporate in this
law, in order to correct the abuses prevalent among mankind, and supply
the deficiencies of nature, so that in this way Our subjects may become
familiar with these matters, and be informed of Our solicitude for their
interests, and that We prefer their welfare to every other consideration.
|
Given
at Constantinople, on the Kalends of September, during the
thirteenth year of the reign of Our Lord the Emperor Justinian, and
the Consulate of Appio. |
| |