BOOK IV.

CONCERNING NATURAL LINEAGE.

TITLE I. CONCERNING THE DEGREES OF RELATIONSHIP.

=I.= _The Nature of the First Degree._

=II.= _The Affinity of the Second Degree._

=III.= _The Relationship of the Third Degree._

=IV.= _The Consanguinity of the Fourth Degree._

=V.= _The Origin of the Fifth Degree._

=VI.= _The Limits of the Sixth Degree._

=VII.= _The Persons in the Seventh Degree who are not Mentioned

by the Laws._

=I. The Nature of the First Degree.=

In the first rank of the first degree are included the father and the

mother; in the second rank, the son and the daughter; but no other

persons.

=II. The Affinity of the Second Degree.=

In the second degree and the first rank, are included the grandfather

and the grandmother; in the second, the grandson and the granddaughter;

in the collateral line, the brother and the sister, which persons have

a twofold origin, for the father and the mother are derived from both

the grandfather and grandmother; the grandson and granddaughter, from

both son and daughter; the brother and sister, from both father and

mother. And likewise, the persons in the following degrees, in whatever

relationship they stand to each other, are, in the same manner, of

twofold origin. Persons in the second degree are thus said to be of

double derivation, because there are two grandparents, paternal and

maternal; and two kinds of grandchildren, descended either from the

son or from the daughter. The brother of the father, or the brother

of the mother, who are called respectively the paternal or maternal

uncles, belong to the collateral line, and they, in like manner, are of

double origin.

=ANCIENT LAW.=

=III. The Relationship of the Third Degree.=

The third degree includes, first the great-grandfather and

the great-grandmother; second, the great-grandson and the

great-granddaughter; in the collateral line, the son and the daughter

of the brother and the sister; the paternal uncle and the paternal

aunt, that is to say, the brother and the sister of the father; and the

maternal uncle and the maternal aunt, that is to say, the brother and

sister of the mother.

=ANCIENT LAW.=

=IV. The Consanguinity of the Fourth Degree.=

In the fourth degree come first the great-great-grandfather and

the great-great-grandmother, and then the son and daughter of

a great-grandchild; in the collateral line, the grandson and

granddaughter of the brother and the sister; then the cousins of both

sexes, the sons and daughters of the paternal uncle, and the children

of the maternal uncle and aunt; then other cousins, the children of

the father’s sister; and also cousins who are born of two sisters;

and besides, the great-uncle and the great-aunt by the father’s side;

then the great-uncle and great-aunt by the mother’s side. There is no

necessity of explaining this any further than is here stated.

=ANCIENT LAW.=

=V. The Origin of the Fifth Degree.=

The fifth degree includes, in the first place, the

great-great-great-grandfather and the great-great-great-grandmother;

secondly, the great-great-great-grandson and the

great-great-great-granddaughter, and, in the collateral line, the

greatgrandsons and great-granddaughters of brothers and sisters;

male and female cousins by the father’s side, the sons and daughters

of cousins by the father’s side, and the children of great-uncles and

aunts on both father’s and mother’s side. Next come the brothers and

sisters of the paternal great-grandfather and the brothers and sisters

of the maternal great-grandfather. The above-mentioned degrees of

relationship we cannot define by other means, or in other words, than

those in which they are here set forth.

=ANCIENT LAW.=

=VI. The Limits of the Sixth Degree.=

To the sixth degree belong, first, the

great-great-great-great-grandfather and the

great-great-great-great-grandmother; then

the great-great-great-great-grandson and the

great-great-great-great-granddaughter; next, in the collateral line,

the son and the daughter of a great-grandchild of the sister; the

sons of a father’s brother and the sons of a father’s sister; cousins

on both sides of the house; paternal and maternal great-aunts,

and the grandsons and granddaughters of paternal great-uncles and

maternal great-aunts. To whom are added, in the collateral line, the

children of the great-uncles and the great-aunts of both father and

mother; that is to say, of the brother and the sister of the paternal

great-great-grandfather, and of the brother and sister of the maternal

great-great-grandmother. No better explanation of this matter can be

given than we have written above.

=VII. The Persons in the Seventh Degree who are not Mentioned by the

Laws.=

In the seventh degree those who are related in the direct line are not

specifically designated by name; but the collateral line embraces the

sons and daughters of great-grandchildren of brothers or sisters, and

the sons and daughters of their cousins of both sexes. There exist,

then, seven degrees of relationship, and no more, because, according

to the nature of things, names could not be found for others, nor more

heirs be begotten in the space of an ordinary lifetime.

TITLE II. CONCERNING THE LAWS OF INHERITANCE.

=I.= _Brothers and Sisters shall Share Equally in the

Inheritance of their Parents._

=II.= _The Children shall Come First in the Order of

Succession._

=III.= _Where there are no Heirs in the Direct Line, Collateral

Heirs shall Inherit the Property._

=IV.= _Who shall Succeed to the Property of Those who have

left no Written Wills, or have made no Disposition of

their Possessions in the Presence of Witnesses._

=V.= _Concerning Inheritance by Brothers and Sisters, and by

such of these as are not descended from the same

Parents._

=VI.= _Where he who dies leaves Grandfathers or Grandmothers._

=VII.= _Where he who Dies leaves Aunts._

=VIII.= _Where he who Dies leaves Nephews._

=IX.= _A Woman shall be entitled to a Share in an Entire

Inheritance._

=X.= _As a Woman has a Right to a Share of an Entire

Inheritance, so he who is next in Succession shall

Inherit the Remainder of the Property._

=XI.= _Concerning the Inheritance of Husband and Wife,

respectively._

=XII.= _Concerning the Inheritance of Property from Clerks and

Monks._

=XIII.= _After the Death of their Mother, Children shall remain

under Control of their Father; and What Disposition

he shall make of their Property._

=XIV.= _Where a Mother remains a Widow, she shall have an Equal

Portion of the Inheritance with her Children; and

How a Mother ought to Dispose of the Property of her

Children._

=XV.= _No Wife can lay Claim to what her Husband has Gained by

the Labor of her Slaves._

=XVI.= _Concerning such Property as the Husband and Wife,

together have Accumulated during their Married Life._

=XVII.= _In what way a Child may Inherit Property._

=XVIII.= _How the Parents of a Child can Inherit from Him._

=XIX.= _Concerning Posthumous Children._

=XX.= _He who leaves no Children, has full Power to Dispose of

his Property as he Pleases._

=I. Brothers and Sisters shall Share Equally in the Inheritance of their

Parents.=

If the father or mother should die intestate, the sisters shall have

the property equally with their brothers.

=II. The Children shall Come First in the Order of Succession.=

If a man should die intestate, his children shall stand first in the

order of succession; if there are no children, the inheritance shall

descend to the grandchildren; if there are no grandchildren, then the

great-grandchildren shall have a right to it; and if the decedent

should leave neither children nor grandchildren, nor father nor mother,

then his grandfather or grandmother, should either be living, may claim

the inheritance of his estate.

=ANCIENT LAW.=

=III. Where there are no Heirs in the Direct Line, Collateral Heirs

shall Inherit the Property.=

When any of the above-named persons of the first or second degree,

in the direct line of succession, are not living, then collateral

heirs shall be sought for to inherit the property of the man who died

intestate. And such persons as are only distantly related can claim

nothing while nearer heirs are still living.

=IV. Who shall Succeed to the Property of Those who have left no Written

Wills, or have made no Disposition of their Possessions in the Presence

of Witnesses.=

In the case of those who die, and make no disposition of their property

either by gift or by will, or do not declare their intentions in the

presence of witnesses; their next of kin shall inherit from them.

=V. Concerning Inheritance by Brothers and Sisters, and by such of these

as are not descended from the same Parents.=

Where a man leaves only brothers and sisters, they shall inherit his

property, share and share alike, provided they are all children of

the same father and mother. But if some should be descended from a

different father or mother from the others, the inheritance shall go

to the brothers and sisters having the same father and mother as the

decedent. Such children as are born of different parents, but of the

same mother, shall inherit the property of the mother, share and share

alike. Those also who are descended from different mothers, but the

same father, shall share in a like manner.

=VI. Where he who Dies leaves Grandfathers or Grandmothers.=

If any one should leave a paternal grandfather and grandmother, his

entire property shall descend to them. So also if he should leave a

paternal grandfather and maternal grandmother, they shall inherit his

estate equally; and the same disposition of it shall be made, if he

should leave both a paternal and a maternal grandmother. This equitable

division of his estate shall apply only to such portions of it as he

has acquired by his own efforts; and whatever he may have inherited

from his ancestors, or his parents, shall descend to the heirs of the

latter in the direct line of succession.

=VII. Where he who Dies leaves Aunts.=

Where the decedent dies intestate, and leaves only a paternal uncle and

aunt, and a maternal uncle and aunt, they shall inherit the property in

equal parts.

=ANCIENT LAW=.

=VIII. Where he who Dies leaves Nephews.=

Where the decedent does not leave any brothers or sisters, but does

leave nephews and nieces; if one of them should be the son of one

brother, and the others the children of another brother or sister, the

inheritance shall be divided among them, share and share alike.

=IX. A Woman shall be entitled to a Share in an Entire Inheritance.=

A woman shall inherit, equally with her brothers, the property of

their father or mother; of their grandparents, on the paternal and

the maternal side, as well as of their brothers and sisters; and also

any property which may be left by a paternal uncle, or a cousin, or

a nephew, or a niece. For it is only just that those who are nearly

related by blood, should enjoy the benefit of hereditary succession.

=X. As a Woman has a Right to a Share of an Entire Inheritance, so he

who is next in Succession shall Inherit the Remainder of the Property.=

Women shall share all property left by relatives on the maternal side,

with those in the same degree of relationship, whether they be uncles,

aunts, or cousins. For those should have the inheritance who are the

most nearly related to the deceased.

=ANCIENT LAW.=

=XI. Concerning the Inheritance of Husband and Wife, respectively.=

Husband and wife shall inherit from each other, respectively, when they

leave no relatives nearer than the seventh degree.

=XII. Concerning the Inheritance of Property from Clerks and Monks.=

The church to which they are attached shall inherit the property of

all clerks, monks, and other persons in orders, who have left no heirs

under the seventh degree, and who have made no disposition of their

estate.

=XIII. After the Death of their Mother, Children shall remain under the

Control of their Father; and What Disposition he shall make of their

Property.=

If the mother should die, the children shall remain under the control

of the father. And, if she should die while her husband is still living

and he should not marry again, he shall have charge of the children

born of the marriage, and may retain possession of their property, with

the understanding that he is not to sell, damage, or dispose of it in

any way, but shall preserve it intact for the benefit of his children.

But, in common with his children, he shall enjoy the income from said

property, and shall be entitled to reserve from it all their necessary

expenses. If, however, the father should marry again, he shall not

relinquish the care of the children, because it is not just that his

authority over them having been abandoned, they should be placed under

the guardianship of another; but he shall still retain control over

them and their property, as hereinbefore mentioned. But he must at

once draw up an inventory of their property in his own hand, in the

presence of a judge, or of the heirs of his deceased wife; and he must

also bind himself by a written obligation, that those relatives who are

legally entitled to it shall have the guardianship of the children in

the case of his death; in order that none of the property of the latter

may be lost, but may be protected by him, in every way, from injury or

diminution in value. If the father, after having married a second time,

should refuse to act as guardian of his children, then the judge shall

appoint the nearest relative of the mother to take charge of them as

guardian. And if either his son or daughter should marry, they shall

at once receive their portion of their mother’s estate; excepting the

third part, which he may reserve for himself, as authorized by law.

The father, as soon as a son or daughter has reached the age of twenty

years, shall give to them half of what they are entitled to from their

mother’s estate, provided that they should not have already married.

The remaining half the father shall reserve for himself during his

lifetime, and, after his death, it shall descend to his children. This

same regulation shall apply also to grandchildren. When the father has

alienated any of the aforesaid property, or has retained it beyond the

time prescribed by law, everything belonging to his children by right

of inheritance from their mother, shall be given to them, at once, by

way of complete restitution.

=ANCIENT LAW.=

=XIV. Where a Mother remains a Widow, she shall have an Equal Portion of

the Inheritance with her Children; and How a Mother ought to Dispose of

the Property of her Children.=

A mother, during her lifetime, or so long as she remains a widow, shall

share equally with her children in the income derived from the estate

of her deceased husband. But she cannot give away, or sell, or bestow

upon any of her children her share of the aforesaid property. And if

the children should become aware that their mother, either through

negligence, or through hatred of them, was about to dispose of any of

said property, they may, at once, make application to the governor of

the city, or to the judge, in order that the latter may warn their

mother not to alienate such property, and only to use the income of

it. She, however, shall have the right to give to her children any

or all of said income, and she can unquestionably dispose of any

profits derived from the same. And if it should be proved that she has

alienated any of her portion, full restitution must be made therefor

after her death.

After the death of the mother, whatever she received from her husband

shall be equally distributed among the children, because they must not

be defrauded of their paternal inheritance. If the mother should marry

again, from that very day the children can claim as their own that

portion of their father’s property which their mother received at his

death.[20]

=XV. No Wife can lay Claim to what her Husband has Gained by the Labor

of her Slaves.=

If the husband should acquire any property through the labor of his

wife’s slaves, or in any foreign enterprise, his wife shall have no

right to such property, either during his lifetime, or after his death

for a husband who has control of his wife, as stated in the law of

the Holy Scriptures, shall also have full authority over her slaves;

and everything which he has gained by the services of the latter, or

by those of his own slaves, in any undertaking, shall belong to him

absolutely. And if the said slaves, while they are engaged with their

master in any expedition or enterprise, should commit any wrong, or do

any injury, he who brought them with him shall be responsible for their

conduct, and shall make restitution, should they be found guilty. It

has thus very properly been determined that, as their master profits

by their labors, he should also be responsible for any damage they may

cause.

=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=

=XVI. Concerning such Property as the Husband and Wife together have

Accumulated during their Married Life.=

When persons of equal rank marry one another, and, while living

together, either increase or waste their property, where one is

more wealthy than the other; they shall share in common the gains

and losses, in proportion to the amount which each one holds. If

the value of their possessions is the same, neither has a right to

assume superiority over the other. For, it is not unusual, where

such property is equal in amount, for one party, in some way, to

take advantage of the other. And if it should be evident that the

possessions of one exceed those of the other in value, as above stated,

there shall be an apportionment of it made, showing what either shall

have the right to claim after the death of the other, and what either

shall have a right to dispose of to his or her children, or to heirs,

or in any other way that may be desired. This provision shall apply to,

and be observed in, all cases relating to the estates of both husbands

and wives. The distribution and possession of other property concerning

which an agreement in writing has been entered into by both parties,

shall be held and enjoyed by them according to the terms of that

written agreement. If the husband should acquire any property, either

from strangers, or during any public expedition, or by the donation of

the king, or of a patron, or of any of his friends, his children or his

heirs shall have a right to claim it, and shall have absolute power to

dispose of it as they wish. The same rule shall apply to women who have

received gifts from any source.

=XVII. In what way a Child may Inherit Property.=

Ambiguity frequently produces error where a reasonable explanation is

not given to elucidate a fact that is doubtful. Many persons deny that

a child dead in infancy can have, at any time, a right to inherit from

its parents, and we desire now to put an end to such disputes. For the

origin of nature is such, that he who is born uses the senses of sight

and touch before anything else. Who, therefore, can inherit any earthly

possessions who died almost before he was sensible to light? And in

what way can he be the possessor or property for whose control he was

not destined, and who has scarcely had the use of the elements of which

he was formed? And he who has hardly been blessed by the light of

heaven; how can the unexpected inheritance of the world enrich him when

suddenly removed by death? With what reason can he claim the rights of

the living, who is more nearly associated with death than with life,

and who thus quickly dying in the midst of light, has fallen back into

darkness? Therefore, that the inheritance of an infant may belong

to its nearest relatives, and the fact that he was living be clearly

proved; and as the child had a right to eternal life, so also that it

may have a right to terrestrial life; we hereby decree that no child of

either sex shall inherit, unless it has been proved that it lived for

the space of ten days after its birth, and shall have received the holy

sacrament of baptism, so that the father or mother of the child who

shall be entitled to its inheritance, may, before its death, prepare

it for its entrance into heaven; and that while still living, it shall

obtain the possessions of the earth with their transitory benefits. And

thus, while heavenly possessions are provided for it, it shall also be

permitted to acquire those of the earth; and although while dead, it

cannot benefit by the things of earth, it can, at least, enjoy those of

heaven.

=FLAVIUS CHINTASVINTUS, KING.=

=XVIII. How the Parents of a Child can Inherit from Him.=

Where the father is dead and the son or daughter should have lived

ten days or longer, should have been baptized, and then should die;

whatever either would have inherited from the estate of his or her

father, may be claimed by his or her mother. And, in like manner, if

the mother should die, the father shall not be entitled to the share

of the deceased child, unless he be able to prove that that child has

lived ten days, or longer, and has been baptized. And if neither father

nor mother in whom these rights are vested, should leave any children,

the entire inheritance shall be divided among the other descendants;

but they shall not have the power to give to each grandchild more than

the third part of the aforesaid property. And if they should wish to

give any of it to the Church, or to freedmen, or to any one else, they

shall have the right to dispose of only the fifth part of it in this

manner, as prescribed by a former law. But where neither children nor

grandchildren, nor great-grandchildren should be living, they shall

have the right to make such disposition of their property as they

desire.

If said parents should die intestate, then such other of their

relatives as are next of kin shall be entitled to the aforesaid

property. Thus, if after the death of a child, the father should

inherit its estate, and should die intestate, the inheritance shall

belong to those heirs who are entitled to it by law. In like manner, if

the mother should inherit the estate of her deceased child, and should

die intestate, all interest in that estate shall belong to her nearest

heirs; on this condition, that the grandchildren of the son or daughter

who died while their father and mother were living, shall inherit

such a portion of the estate of their grandfather or grandmother as

their own parents would have inherited had they been living. But if

a son having a wife and children should die during the life of his

father, before his father has given him all that he was entitled to

from his estate, and his sons should also die during the life of their

grandfather, the daughter-in-law shall receive only so much as the

father had formerly set aside for her husband. Nor can the widow claim

any more than this from her father-in-law or any of his relatives. But

if the son had been living with the father, and had not yet received

anything from him; the son’s widow shall then only be entitled to what

she obtained as a dowry at the time of her marriage. Where the son, in

obedience to his father’s wishes, permitted the latter to retain what

he was entitled to from his mother’s estate, and should bequeath it at

his death to his wife, or to any one else; such bequest for the benefit

of the wife or of others, if made in writing, shall be valid: provided

his mother did not have other sons by the same husband. If, however,

other sons should be living, the provisions of the former law must be

carried out.

=FLAVIUS CHINTASVINTUS, KING.=

=XIX. Concerning Posthumous Children.=

We fulfil the injunctions of the Divine Law when we provide for those

who are yet unborn. Therefore, when a man cut off by death, leaves his

wife pregnant, we decree that the child who is born afterwards shall

share equally with those who are already born. But if he should leave

no issue, and should bequeath his property to any person, the latter

shall only be entitled to receive the fourth part of it. The three

remaining parts shall descend, without question, to the posthumous

child. Where a husband and wife before they have children, enter into a

written agreement, mutually bestowing their property upon one another,

and, afterwards, should have children; such a disposition of property,

if their children are living, shall be void; and the children may take

and hold the entire property of their parents, with the exception of

the fifth part, which the parents shall have the right to dispose of

otherwise. But if one of them, that is to say, either the husband or

wife, before the marriage was consummated, should be proved to have

made for the benefit of the other a written agreement disposing of

property, it shall remain in full force; and such donation cannot, in

any way, be overthrown by children subsequently born of their marriage.

=THE GLORIOUS FLAVIUS CHINTASVINTUS, KING.=

=XX. He who leaves no Children, has full Power to Dispose of his

Property as he Pleases.=

Every freeborn man and woman, whether belonging to the nobility,

or of inferior rank, who has no children, grandchildren, or

great-grandchildren, has the unquestionable right to dispose of his or

her estate at will; nor can any arrangement that either may make, be

set aside by any relatives of theirs belonging either to the direct or

to the collateral line. For those belonging to degrees of relationship

other than the above, in the direct line, cannot, in the order of

nature, receive the inheritance. Such relatives can, however, inherit

from the intestate in accordance with the law which defines their

rights.

TITLE III. CONCERNING WARDS AND THEIR GUARDIANS.

=I.= _What a Minor Is._

=II.= _From what date Time is to be Computed in Bringing

Lawsuits relating to Minors._

=III.= _How the Guardianship of Wards shall be Entered upon; what

Portion of their Property they shall Receive, and what

Portion shall be Given to their Guardians._

=IV.= _Guardians shall have no Right to Exact from Wards in

their Charge any Instruments in Writing whatever._

=FLAVIUS CHINTASVINTUS, KING.=

=I. What a Minor Is.=

It is a part of the practice of the duties prescribed by law, to

so care for the rights of minors that they shall suffer no loss of

their inheritance. Up to this time, little children left by a father

have been called minors, for the reason that the mother has not less

responsibility and care, on their account, than when both parents were

living; and therefore we now decree, that henceforth any children left

by father or mother, and who have not yet attained the age of fifteen

years, shall be designated minors.

=FLAVIUS CHINTASVINTUS, KING.=

=II. From what date Time is to be Computed in Bringing Lawsuits relating

to Minors.=

Where a question arises concerning the time within which an action at

law can be maintained for the recovery of property in which minors are

interested, we decree that an estimate must be made of the period which

has elapsed since the parents have lost possession of said property;

that is to say, it must be determined whether the entire number of

years from that date, when added to those of the minor shall amount

to fifty; and, if the number should be greater than that, the minor

shall not be entitled to recover. And, moreover, if the parents of the

minor in their lifetime, shall have neglected to assert their rights

for the space of thirty years, the said minor shall not be permitted to

prosecute such a claim as their representative.[21]

=III. How the Guardianship of Wards shall be Entered upon; what Portion

of their Property they shall Receive, and what Portion shall be Given

to their Guardians.=

After the death of the father, the mother shall have the guardianship

of the minor children, if she should wish it, provided she remains

a widow; and she shall make an inventory of the property to which

the children are entitled, by means of which their rights to their

inheritance may be established. But if the mother should marry again,

any one of the sons who has attained his majority, that is, who has

reached the age of twenty years, may assume the guardianship of his

younger brothers; and shall see that their property is not alienated,

or dissipated through neglect, by themselves, or by any one else.

But, in case he himself should use it up, or sell it, or give it

away, or permit it to be lost through his own negligence: as soon as

his brothers shall have become of age, he shall be compelled to make

restitution out of his own share, of whatever was wasted by him. He

shall, however, be allowed the tenth part of the income for the purpose

of living, to the end that he may not burden with extravagant expenses

what should be reserved for the minor heirs. Where he spends his own

money, or uses his own property for the necessaries and business of

all, and this fact is brought to the attention of the judge, he shall

be reimbursed for his expenditures out of the entire estate left by

his father. If any of the brothers should not be of lawful age, or of

proper character to undertake the guardianship of orphans, a paternal

uncle of a cousin may assume this duty; and if neither the paternal

uncle nor his son should be found worthy, then a guardian shall be

selected by the other relatives in the presence of the judge.

Where neither the mother, nor any one else, assumes the guardianship,

an inventory of all the property which the father left shall be drawn

up and signed by her and by witnesses, from the number of three to

five, and shall be placed in the keeping of any bishop or priest whom

the relatives may select, to be delivered to the children when they

have attained their majority.

It is also hereby provided that if any suits are brought against

minors, their guardian, should he desire it, has a right to defend such

actions. If, however, he should neglect to do so, a judgment shall be

rendered by the court in favor of the plaintiff, without prejudice to

the rights of the minors to have the matter reviewed, when they shall

become of lawful age. If the party who made the claim should lose his

case when the minor has reached his majority, he shall be compelled

to restore to the minor, or to his relatives, or to any one who may

have a right to it, whatever property he obtained under the judgment

aforesaid, along with any income it may have produced, and any profits

which may have accrued from its possession; and he shall be compelled

to pay ten _solidi_ in addition, because he has prosecuted a claim

which was not valid in law. Where a guardian desires to defend any

action brought against his ward in court he shall have full authority

to do so; but if the rights of the ward should be affected, or his

property impaired or lost through his neglect, the guardian shall

afterwards be compelled to make restitution.

=THE GLORIOUS FLAVIUS RECESVINTUS, KING.=

=IV. Guardians shall have no Right to Exact from Wards in their Charge

any Instruments in Writing whatever.=

As minors are unable to care for themselves or their property, it has

been wisely provided by the laws that they should be subjected to the

authority of guardians, and that their business should be transacted

for them for a stated number of years. For the reason, however, that

certain guardians, by means of either persuasion or threats, defraud

those whose interests it is their duty to carefully protect, and compel

them to enter into agreements that they will not demand an accounting

of their property, or exact bonds or other written instruments from

their wards, by means of which they seek to prevent inquiry into their

actions: therefore, that our solicitude for the rights of such wards

may the better appear in all matters where such rights are involved, we

hereby decree that the following law must be strictly observed, to wit:

that in the case of such wards, even when they have passed the age of

fourteen years, where the guardian or guardians who had charge of their

persons and property shall be found to have caused the execution of

any bond or written instrument of any description, which enures to the

benefit of said guardians or any person designated by them, then such

bond or instrument shall be void, and of no force whatever in law.

When the time shall come that he who has been under guardianship

shall have the right to assume the management of his own affairs,

the guardian shall give a complete account of the care of his ward’s

property, in the presence of a priest or a judge, and shall receive

from his former ward a full discharge from all obligations; so

that, all restraint being removed, the said ward may come into full

possession of his property, and have the right to dispose of it at his

pleasure. But if it should happen that, while the guardianship is in

force, the ward should be attacked by a dangerous illness, and should

wish to dispose of his property by will, he can do so, provided he has

completed his tenth year, according to the provisions of a former law.

If the guardian, while living or dying, should give any of the

property belonging to his ward to his own children, or to any persons

whomsoever, and no account of the same was made to the wards,

according to the terms of the inventory which was made at the time

the guardianship was accepted, and proof of this should be legally

established, those who received said property from the guardian shall

make full restitution to the wards. All wards shall have the benefit

of this legal remedy, except where, by the lapse of time, and having

passed the age of fifteen years, their rights shall be extinguished by

law.

TITLE IV.--CONCERNING FOUNDLINGS.

=I.= _Where Anyone Casts Away, or Abandons, a Freeborn Child,

he shall Serve as its Slave._

=II.= _Where a Male or Female Slave shall be proved to have Cast

Away a Child, with, or without the Knowledge of his or

her Master._

=III.= _What Compensation for Support anyone shall Receive for

the Bringing up of a Child committed to his Care by

its Parents._

=I. Where Anyone Casts Away, or Abandons, a Freeborn Child, he shall

Serve as its Slave.=

If anyone, induced by compassion, should rescue, and care for a child,

of either sex, who has been abandoned, and such child, after having

been brought up, should be acknowledged by its parents; where the

latter are freeborn persons, they shall either give a slave, or the

price of one, as compensation for the service performed. If they should

neglect to do this, compensation shall be made by order of the judge of

the district; and the parents who have been guilty of such wickedness

shall be condemned to perpetual exile. Where he who casts away the

child has not sufficient property to redeem it, he shall serve as

its slave; and he whom the pity of others has preserved, shall enjoy

complete freedom. It shall be lawful for the judge both to prosecute

and impose sentence for this crime whenever committed.

=II. Where any Male or Female Slave shall be Proved to have Cast Away a

Child, with or without the Knowledge of his or her Master.=

If a slave, of either sex, in order to defraud his or her master,

should expose and abandon their own child, without the knowledge

of said master, and anyone should bring it up, the latter shall be

entitled to receive the third part of its value; but, under such

circumstances, the master must swear or prove that he was ignorant that

his slave had abandoned the child. If, however, it should be shown

that the master was aware of the fact, the child shall become the slave

of him who reared it.

=III. What Compensation for Support anyone shall Receive for the

Bringing up of a Child committed to his Care by its Parents.=

If anyone should accept from its parents a little child to be reared,

he shall receive as compensation one _solidus_ every year, until

the child has reached the age of ten; but he shall be entitled to no

further compensation after it has completed its tenth year, because

after that time the services of the child should be sufficient to pay

for its support. And if he who seeks to take the child again should

be unwilling to pay this sum, it shall be held in slavery by him who

reared it.

TITLE V. CONCERNING SUCH PROPERTY AS IS VESTED BY

THE LAWS OF NATURE.

=I.= _Concerning the Disinheriting of Children; and What

Disposition Parents should make of their Property._

=II.= _What Part of her Dowry a Woman has a Right to

Bequeath._

=III.= _What Property Parents should Bestow upon their

Children, at the Time of their Marriage._

=IV.= _Concerning Children Born of Different Parents; and

What Distinctions Parents may Make in the Disposition

of their Estates._

=V.= _Concerning such Property as Children may have Acquired

during the Lives of their Parents._

=I. Concerning the Disinheriting of Children; and What Disposition

Parents should make of their Property.=

As soon as we have ascertained that any unlawful acts have been

committed, it behooves us to prevent, by legal measures, similar

occurrences in the future. For many persons living reckless lives,

squander their property upon strangers, either on account of riotous

living, or through the unwise counsel of others, and, as a result

of this, leave their inoffensive children or grandchildren weak

and penniless; for those cannot be of any benefit whatever to the

community upon whom the duty of labor has not been enjoined by the

example and virtues of their parents. And, in order that, under such

circumstances, the rights of the community may not be sacrificed, or

children or grandchildren be deprived of the benefits of that natural

affection which should be bestowed upon them, the law, by which a

father or mother, or grandfather or grandmother, have the right to

give their property to a stranger, should they wish to do so, or a

woman to dispose of her dowry in any way that she pleases, is hereby

abrogated; and we decree that the following more equitable law shall be

observed by all, to wit: that neither parents nor grandparents shall

have the absolute right to dispose of all their property, nor that

children nor grandchildren shall, through an unjust will, be deprived

of the inheritance of their parents and grandparents; therefore, any

father or mother, grandfather or grandmother, who wish to bestow any

of their property upon their children or grandchildren, must observe

the following rule, viz: that in the bestowal of said gifts upon their

children or grandchildren they do not exceed the third part of their

property; nor shall it be lawful for them to transfer any of their

property to any stranger, unless they should not have any legitimate

children or grandchildren living.

The following, however, we decree shall be observed, as being in

accordance with the dictates of reason: that if the father or mother,

grandfather or grandmother, should decide to bequeath, by any

instrument in writing, any portion of the third part of their property,

as aforesaid, to their children or grandchildren, in compliance with

the laws governing inheritances, all such proceedings shall be forever

inviolable; and whatever bequest concerning said property may be made,

shall have full and uncontrovertible validity. Nor shall it be lawful

for the child or grandchild who has received any of the said third

part of the estate from their parents, to claim anything more, unless

they should prove to be entitled to it by some former bequest of their

parents or grandparents.

If those having children or grandchildren, should wish to bestow

anything upon the Church, or upon freedmen, or upon anyone else, they

shall have the right to dispose of the fifth part of what remains,

after the said third part has been reserved. The authority of such

persons to dispose of the said fifth part is indubitable; but, in such

cases, either the third part of the property which is to be bequeathed

to the children, or the fifth part which is to be otherwise disposed

of, as aforesaid, must be separated from the remaining property, and

a proper estimate made of the same. But whatever anyone has received

through the generosity of the king, shall, under no circumstances, be

included in the estimate of either the third or the fifth parts of the

estate aforesaid; for, according to another law, whatever anyone has

acquired through the royal bounty shall be absolutely at his disposal.

It has been already provided that children and grandchildren cannot

be disinherited by their parents for any trifling offence. The

grandfather and grandmother, as well as the father and mother,

shall have the right to chastise and restrain their children and

grandchildren, as long as they remain members of the family. And if a

son or daughter, grandson or granddaughter, should attempt to inflict

any serious injury upon their parents or grandparents; that is to say,

if he or she should give any of them a blow with the fist; or a kick;

or strike them with a stone, or with a scourge, or with a whip; or

should insolently seize any of them by the foot, or by the hair, or

even by the hand; or be guilty of any shameless assault upon them; or

should publicly accuse them of crime; then, any child or grandchild

convicted of such an offence, shall receive fifty lashes with the

scourge, in the presence of the judge, and shall forfeit all claim to

the inheritance of its grandparents or parents, should the latter so

desire. But if, repenting of its conduct, it should implore the pardon

of those whom it has offended; and, through the love of its parents,

it should be again received into favor, and designated as an heir; it

shall not be deprived of its inheritance, or be accounted infamous, on

account of the punishment which it has received.

=FLAVIUS CHINTASVINTUS, KING.=

=II. What Part of her Dowry a Woman has a Right to Bequeath.=

For the reason that many women to whom the privilege was granted of

disposing of their dowries as they pleased, have been found to have

bestowed them upon persons with whom they were living illegally, to

the injury of their children or grandchildren; therefore, we declare

it to be both necessary and proper that those for the rearing of

whom the marriage was celebrated, should receive some benefit from

said property. In pursuance whereof we decree that, if any woman has

children or grandchildren, and should wish to bestow a gift upon the

Church, or upon freedmen, or upon any other person or persons; she

shall not have the right to dispose of more than the fourth part of

her dowry in this manner. Three fourths of it shall be left, without

question, to her children or grandchildren, whether there be one,

or many of them. On the other hand, a wife shall have full power to

dispose of her entire dowry, in any way she pleases, when she leaves

no legitimate children or grandchildren. Nevertheless, it shall not

be lawful for any woman who has married two husbands, or more, to

give the dowry she has received from one husband, to the children or

grandchildren of another; but the children and grandchildren born in a

certain line of descent shall, after the death of their mother, have

the entire dowry given by their father or grandfather.

=FLAVIUS CHINTASVINTUS, KING.=

=III. What Property Parents should Bestow upon their Children, at the

Time of their Marriage.=

Wherever wrong is done by parents to the interests of their children

it must be remedied by law. Therefore, because the duplicity of

parents sometimes prompts them to deprive their children of what they

have given them at the time of their marriage, we hereby declare such

acts to be void; and decree that the following law shall hereafter be

observed forever, to wit: that if any property should be transferred

to any person, either by writing, or in the presence of witnesses, at

the time of his or her marriage, excepting such as is usually given

in the way of ornaments or clothes, as a marriage gift, whether said

property consists of slaves, lands, vineyards, buildings, clothing, or

jewels, presented by the parents to the children, either at the time

of the marriage, or after it, the said children shall have full power

to dispose of such property as they wish, with this exception: that,

after the death of their parents, the inheritance shall belong to the

children exclusive of what said parents have previously given to them

according to law, and an equal distribution of said inheritance shall

be made among the heirs; so that a son or daughter shall have full

power to dispose of what they received from their parents at the time

of their marriage, according to the provisions aforesaid.

After the death of the parents, an inventory shall be made, and the

property which was donated at the time of the marriage shall be

appraised, and the other heirs shall receive an equivalent in value to

the amount of said property; and all shall then share equally in the

remainder of the estate of the parents.

=FLAVIUS CHINTASVINTUS, KING.=

=IV. Concerning Children Born of Different Parents; and What

Distinctions Parents may Make in the Disposition of their Estates.=

If a man marries several wives, and has children by all of them, and

any of his sons or daughters should die intestate, his or her brothers

or sisters shall be entitled to the estate, provided the decedent left

neither children nor grandchildren; and said heirs shall have a right

to claim it after proving that they are descended from the same father

and mother. Where there are children by one father and by different

mothers, those only who are descended from the same father have a right

to an equal division of the property belonging to him. With regard

to those who are sprung from one mother and different fathers, we

prescribe the following regulations, to wit: that if a woman should

have children by different husbands, only those brothers and sisters

who are the children of the same father and mother shall have a right

to the inheritance, descending either in the paternal or maternal line

from such as have died intestate, or without offspring or descendants.

As it has been established by a former law that the grandchildren shall

not be deprived of the third part of the estate of their grandparents,

it shall be lawful for the grandsons and granddaughters who have lost

either of their parents, to share equally with their paternal or

maternal uncles in the estates of their grandfathers and grandmothers;

that provision only of said law remaining valid, by which it was

decreed that parents and grandparents may bestow their property upon

their children and grandchildren, or may give away what they please to

a stranger.[22]

=V. Concerning such Property as Children may have Acquired during the

Lives of their Parents.=

Any son who, while his father and mother are living, acquires any

property, either through the favor of the king, or through the

generosity of his patron, shall be entitled to absolute control of the

same, and shall have the right to sell, or give it away to any one he

chooses, as has already been provided by our laws; nor can his father

or mother claim any of said property while the son is living. Where, on

the other hand, a son obtains property, not through royal generosity,

but by his own labor, or during some public expedition; should he be

living with his father at the time, the latter shall be entitled to the

third part of said property, and the other two-thirds shall belong to

the son.

The Visigothic code · 第 4 / 13 章