On the Species. Discourse I.

...is left to a later child; then the son can first deduct his Statutory Share original: Legitimam — a portion of an estate that the law requires to be set aside for the children, which a parent cannot give away to a spouse or others.. Once that is deducted, only then must a division be established between the son and the stepmother original: noverca out of what remains: as the Doctors of Law original: Dd. — short for Doctores, referring to established legal scholars commonly derive from this edictal law The lex edictalis was a Roman law regulating how much a remarrying parent could leave to a second spouse.. These scholars include Rolandus a Valle in his treatise On the Profit of Dowries, question 27, number 3; Cravetta, consultation 194, throughout; Berous, consultation 119; Boerius, decision 201; Ferrariensis, In the Form of a Legal Petition, regarding "How a Wife Acts for a Dowry," the section "The Said Lady," the second-to-last column; and Cephalus, consultation 412, book 3.

And thus, not only is a spouse unable to leave more to a later spouse than to one of the children from the first marriage; but in addition to this, each of those children must have their full statutory share from the parent’s assets. This ensures that after the share is deducted before all else, the remaining goods are then divided equally between them and the stepfather original: vitricus or stepmother. This is because the children possess one right by the Law of Nature, and another due to the "offense" of the parent passing into Second Vows remarriage. Hence, since one is considered a penalty [against the remarrying parent] and the other a pursuit of property [the inheritance], they do not usually obstruct each other. Therefore, a testator [the person making the will] cannot cause this profit to be counted toward their statutory share.

Peter Pekius says, in book 2 of On the Testament of Spouses, chapter 18, number 3, that almost all the ancient Doctors feel this way, and he laboriously refutes those saying the opposite. Even Petrus de Ancharano—though he thinks the opposite opinion is truer and clearly more in line with the text of the Law of Edicts—nevertheless admits it is hardly safe to deviate from our view: namely, that the son should deduct the full Statutory Share and afterwards also share in what is taken from the [second] spouse.

All these and similar rights in favor of the children of the first marriage still endure today. The interpreters of both laws Civil and Canon Law admit with one voice that these rights were not corrected by Canon Law The law of the Church, even though Canon Law removes the formal penalties for second marriages. This is supported by Abbas and others in the final chapter of On Second Marriages; the Doctors on the first law of the Code On Second Marriages; Nicolaus Everhardus, consultation 213, number 27; Gail, observation 98, book 2; Hartmann Hartmann, 2nd observations, title 33, observation 5; Sarmienta, book 1 of Select Interpretations, chapter 4; and Fachinaeus, book 3, chapter 65.

Notably, Sarmienta says in the same place (numbers 4 and following) that the decree of the Edictal Law is not a penalty, but a pure matter of the children's interest, which a woman is bound to restore to the sons in the Court of Conscienceoriginal: foro Conscientiae — a matter of moral and religious obligation before God, rather than just a secular legal requirement.. These points already mentioned are also elegantly confirmed by Cujacius Jacques Cujas, a famous French legal humanist in his commentary on Novel 22 New Constitution 22 of Emperor Justinian, where he says the reason the penalties for second marriages still persist is this: because usually the children of the first marriage are affected by injury and loss.

And in his Summaries of the Code on Second Marriages, he says the same: Second marriages are restrained by laws so that the children of the first marriage may be looked after; for parents are often corrupted away from them [their first children] by a change of bed-partner, as Ambrose elegantly says in the 6th book of his Hexameron A famous work by Saint Ambrose of Milan regarding the six days of Creation.. And certainly this decree—