52 Privileges on Inheritance to Jewish and Samaritan Converts to Christianity; Incapacity of Sacrificing Christians to Testate

 (Theodosius II with) Valentinian III

7    or 8 April 426

This law, given on 7 or 8 April 426 in the Western Court of Ravenna in the names of Valentinian III and Theodosius II, was addressed to Bassus, Praefectus Praetorio of Italy.

(A) CTh 16:8:28, dated to 8 April 426, terminating with “and other matters.”

(B) CTh \(y.T.7, dated to 7 April 426, opening with the formula “after other matters.”

The text of CTh 16:7:7 was received, with slight changes, by Justinian’s editors (CJ 1:7:4), while the main measures of CTh 16:8:28 were reissued by Justinian in 527 or 528 (CJ 1:5:13; and see below, No. 58).

The legislator promulgated the following measures, with the aim of encouraging Jews and Samaritans to baptize, and to dissuade Christians from taking part in pagan sacrifices:

(A) Prohibition to disinherit Jewish and Samaritan converts to Christianity. Violation of this prohibition should entail invalidation of the testament and execution of the inheritance under conditions of intestacy. The only part of the invalidated testament allowed to stand and be executed was that containing manumission of slaves, on condition, however, that the number of the manumitted slaves should not exceed the legal quota.

(B)  Jewish and Samaritan parricides who converted to Christi­anity were entitled to receive the obligatory part of the inheritance according to the Falcidian law.

(C)  Christians taking part in pagan sacrifices were deprived of their right to bequeath their property under a will. The right to challenge posthumously the legality of such an inheritance was made open to all, without any time limit, and the prosecuting party was not obliged to prove that he had already accused the testator of this crime during his lifetime.

These measures, harsher than those promulgated in the previ­ous law (see above, No. 16, from 383), reflected the gradual hard­ening of the official stand on this subject, for that law limited appeals on these grounds to a maximum period of five years after the testator’s death, and obliged the appealing party to prove that he had already opposed the testator’s crimes in his lifetime.

Codex Theodosianus, 16:8:28, ed. Mommsen, pp. 894-895

IMPP. THEOD(OSIUS) ET VAL(ENTINI)ANUS AA. BASSO P(RAEFECTO) P(RAETORI)O

Si ludaei vel Samaritae filius filiave seu nepos, unus aut plures, ad Christianae religionis lucem de tenebris propriae superstitionis consilio 5 meliore migraverint, non liceat eorum parentibus,* id est patri vel matri, avo vel aviae, exheredare* vel in testamento silentio praeterire* vel minus aliquid eis relinquere, quam poterant, si ab intestato* vocarentur, adipisci. Quod si ita forsitan evenerit, iubemus eum ab intestato rescis­sa voluntate succedere, libertatibus,* quae in eodem testamento datae 10 fuerint, si intra legitimum numerum sunt, suam obtinentibus firmitatem.

Si quid maximum crimen* in matrem patremve, avum vel aviam tales filios vel nepotes commisisse aperte potuerit conprobari, manente in eos ultione legitima,* si accusatio interea iure processerit, parentes tamen sub tali elogio,* cui subpeditabunt probabilia et manifesta documenta, 15 solam eis Falcidiam* debitae successionis relinquant, ut hoc saltem in honorem religionis electae meruisse videantur, manente, ut diximus, criminum, si probata fuerint, ultione.

DAT. VI ID. APRIL. R(A)V(ENNAE) THEOD(OSIO) XII ET VAL(ENTINI)ANO II AA. CONSS.·

THE TWO EMPERORS AND AUGUSTI THEODOSIUS AND VALENTINIAN TO BASSUS, PRAEFECTUS PRAETORIO

If a son, a daughter, or a grandson, one or many, of a Jew or of a Samaritan, shall cross over in a better judgement from the darkness of their proper superstition to the light of the Christian religion, their parents,¹ namely father and mother, grandfather or grand­mother, shall not be permitted to disinherit² them or pass them over³ in their will, or leave them anything less than they could obtain if they were called to inherit an intestate.⁴ If it shall so happen, we order that the will shall be rescinded and that he shall inherit in intestatcy, while the manumissions⁵ granted in that will shall retain their validity, provided that they are within the legal number. If it shall be posssible to prove manifestly that the greatest crime⁶ was committed against father or mother, grandfather or grandmother, by such sons or grandsons, while the legal punishment against them stands unchanged,⁷ and as long as the accusation pro­ceeds duly, their parents shall nevertheless leave them only the obligatory Falcidian portion⁸ of the inheritance, conditional upon such codicil,⁹ to which they shall add clear and manifest proofs; in order that they shall be seen to merit this at least, in honour of the religion they have chosen, while the punishment of the crimes—if they shall be proven—stands, as we said, unchanged. And other matters.

GIVEN ON THE SIXTH DAY BEFORE THE IDES OF APRIL AT RAVENNA, IN THE CONSULATE OF THE TWO AUGUSTI, THEODOSIUS FOR THE TWELFTH TIME AND VALENTINIAN FOR THE SECOND.¹⁰

Codex Theodosianus, 16:7:7, ed.

IMPP. THEODOSIUS ET VALENTINIANUS AA. BASSO P(RAEFECTO) P(RAETORI)O

Post alia: Apostatarum sacrilegum nomen singulorum vox continuae accusationis incesset et nullis finita temporibus huiuscemodi criminis arceatur indago. Quibus quamvis praeterita interdicta sufficiant, tamen etiam illud iteramus, ne quam, postquam a fide deviaverint, testandi aut donandi quippiam habeant facultatem, sed nec venditionis specie facere legi fraudem sinantur totumque ab intestato Christianitatem sectantibus propinquis potissimum deferatur. In tantum autem contra huiusmodi sacrilegia perpetuari volumus actionem, ut universis ab intestato venien­tibus etiam post mortem peccantis absolutam vocem insimulationis congruae non negemus. Nec illud patiemur obstare, si nihil in contestatione profano dicatur vivente perductum. Sed ne huius interpretatio criminis latius incerto vagetur errore, eos praesentibus insectamur oraculis,* qui nomen Christianitatis induti sacrificia vel fecerint vel facienda mandaverint, quorum etiam post mortem comprobata perfidia hac ratione plectenda est, ut donationibus testamentisque rescissis ii, quibus hoc defert legitima successio, huiusmodi personarum hereditate potiantur.

DAT. VII ID. APRIL. RAVENNAE THEODOSIO XII ET VALENTINIANO II AA. CONSS.*

THE TWO EMPERORS AND AUGUSTI THEODOSIUS AND VALENTINIAN TO BASSUS, PRAEFECTUS PRAETORIO

After other matters: The sacrilegious name of each one of the apos­tates shall be charged by the voice of continued accusation, and a never-ending investigation of such a crime shall not be prevented. Although what was previously prohibited should suffice in regard to them, this we reiterate, nevertheless, that on no account shall those who had deviated from the Faith have the capacity to testate or donate.

GIVEN ON THE SEVENTH DAY BEFORE THE IDES OF APRIL AT RAVENNA, IN THE CONSULATE OF THE TWO AUGUSTI, THEODOSIUS FOR THE ELEVENTH TIME AND VALENTINIAN FOR THE SECOND.¹²

Codex Justinianus, 1:7:4, ed. Krüger, p. 60

IMPP. THEODOSIUS ET VALENTINIANUS AA. BASSO PP.

Apostatarum sacrilegum nomen singulorum vox continuae accusationis incesset et nullis finita temporibus huiuscemodi criminis arceatur in­dago. Quibus quamvis praeterita interdicta sufficiant, tamen etiam illud 5 iteramus, ne, postquam a fide deviaverint, testandi aut donandi quip- piam habeant facultatem. Sed nec venditionis specie facere legi fraudem sinantur, totumque ab intestato Christianitatem sectantibus propinquis potissimum deferatur.

NOTES

1.        Parents: the definition which follows accords with Gaius’ definition, as preserved in the Digest: ‘Gaius libro vicensimo tertio ad edictum provinciale Appela- tione “parentis” non tantum pater, sed etiam avus et proavus et deinceps omnes superiores continentur; sed et mater et avia et proavia’. “The word ‘parens’ desig­nates not only the father, but also the grandfather, the great-grandfather, and after him all the ancestors; also the mother, the grandmother, and the great-grand­mother.” See Dig. 50:16:51.

2.        Disinheritance of a son or of a daughter had to be made expressly in the will, or in such a way that would leave no doubt as to the identity of the disinher­ited son or daughter. See H. Wurm, Apokeryxis, abdicatio und exheredatio, Munich 1972, pp. 69-77; H. Marrone, “ ‘Praeteritio’, ‘exheredatio’, ‘Querela inofficiosi testamenti’,” Labeo, XIX (1973), pp. 358-365.

3.        lang=EN-US style='font-size: 8.5pt;font-style:normal'>Pass them over: ‘praeteritio’ of a son resulted in the invalidation of the will, for the testator had to appoint him as an heir or disinherit him formally. ‘Praeteritio’ of a daughter or a grandson, on the other hand, did not result in such an invalidation; they were legally considered as though they were nominated heirs in that will.

4.        Intestate: a person who died without leaving a valid will, or one whose will was valid but later invalidated because of the refusal of the heirs to accept it or for other reasons.

5.        Manumission: according to the Fufius-Caninius law (Lex Fufia-Caninia) from 2 b.c. manumission in a will was considered legal if the number of the manu­mitted slaves was kept within a certain ratio to the total number of the slaves in the testator’s possession. If the number of the manumitted exceeded this percentage, the entire manumission was invalidated. This limitation was abolished in 528. See CJ 7:3.

6.        Greatest crime: compare Quintilian’s definition: ‘maximum crimen, immo parricidium’; “the greatest crime, that is ‘parricidium’.” See Quintilian, Dec­lamationes Minores, No. 373, ed. C. Ritter, Leipzig 1884, p. 412. The term ‘parri­cidium’ designated different kinds of murder. It usually meant murder of parents and relatives, but also murder of Roman citizens.

7.        Unchanged: parricides were punished, till Hadrian’s time, with the “sack punishment” (poena cullei)\ the murderer was drowned in the sea or a river sewn—together with a snake, monkey, dog, and a cock—in a leather sack, though these animals were usually omitted (executioners having to do, not infrequently, with snakes only). Hadrian permitted other methods of execution in places dis­tanced from the sea or from rivers. Until the fourth century, parricides were usually burned, or thrown before wild animals in the arena. Constantine the Great restored the traditional punishment for parricides in a law promulgated in 318 (CTh 9:15:1), which was received, without any important change, into Codex Justinianus (CJ 9:17:1). See Hitzig, PW, 1:8, 1901, s.v. Culleus, Cols. 1747-1748; H. Kupiszewski, “Quelques remarques sur le ‘parricidium’ dans le droit romain classique et post- classique,” Studi Volterra, IV, Milan 1971, pp. 601-614; R. Martini, “Sulla costitu- zione di Costantino in tema di parricidio (C.Th. 9, 15, 1),” Atti deli Accademia Romanistica Constantiniana (2° Convegno Internazionale, 1975), Perugia 1976, pp. 105-117.

8.        Falcidian Portion: it was forbidden, according to the Falcidian law (Lex Falcidia) from 40 b.c., to leave more than three quarters of the inheritance in ‘legata’, and the heir was bound to receive at least a quarter of the inheritance. When several heirs were nominated, each of them had the right to at least a quarter of the share of the inheritance. Antoninus Pius applied the Falcidian law to inherit­ance left intestate if the defunct left more than three quarters of his property in ‘fideicomissa’. In a parallel evolution Roman jurists beginning with the first century evolved the notion that a will must include a “legal obligatory portion” (portio legitima) for the heir, and that its absence entitled him to apply to the courts and present a claim of ‘querela inofficiosi testamenti’. The amount of this “obligatory portion” was fixed, under the influence of the Falcidian law, to a quarter of the inheritance, and this influence is noticeable in the term chosen to designate this “obligatory portion”: ‘quarta Falcidia’, that is, “the Falcidian quarter,” despite the fact that two different matters are denoted by referring to the Falcidian law. The first known instance of the use of the term ‘quarta Falcidia’ is in a law promulgated in the names of Arcadius and Honorius in 397 (CTh 9:14:3), but this became a common usage in the course of the fifth century. Justinian’s legislation established, finally, the link between the ‘portio legitima’ and the ‘quarta Falcidia’. See Stein­wenter, PW, 1:24, 1925, s.v. Lex Falcidia, Cols. 2346-2353.

9.        Codicil: the term ‘elogium’ signified an appendix to a will, containing usually directions concerning disinheritance.

10.      Given... second: 8 April 426.

11.      Oracles: see below, No. 60.

12.      Given... second: 7 April 426.

BIBLIOGRAPHY

Godefroy, VI:1, pp. 233-234, 267-268; Juster, II, pp. 89 n. 2, 90-91, 179; Seeck, Regesten, p. 352; Browe, pp. 120-122; Seaver, p. 64; Rabello, “Tribute,” p. 261 n. 6.