On the Three States of Domestic Society

...distribution is most equitable, as Thilman de Benignis original: Thilman de Benignis — a 16th-century legal scholar and judge also calls it in his Decisions of the Imperial Chamber, collection 1, decision 4, vote 3, number 18. Because it is indeed most unjust and most foreign to natural reason that assets which proceeded from a Father should be snatched away from those who are indeed the children of that Father—though made sad by the repetition of his marriage—and transferred to others who are not his children, namely a Stepmother. See Valentin Forster’s Treatise on Intestate Succession, book 9, chapter 13, at the end. And if, as the Jurists ICti: Jurisconsulti, or experts in law say, it is presumed that a Father, incited by "stepmotherly enticements" original: novercalibus delinimentis — a common legal phrase suggesting a second wife might manipulate a husband to disinherit his first children., renders a malicious judgment against his own blood. This is found in the Digest, laws 3 and 4, regarding inofficious wills, and in Forster at the location cited.

Thus Bartolus also teaches in his commentary on the law "if anyone," number 15, regarding testamentary guardianship; as does Matthaeus de Afflictis in his Neapolitan Decisions, 357, numbers 1 and 2: that a mother having a second Husband (and likewise a Father taking a second Wife) is highly suspected by the Law. This is because, following second vows, the law presumes she may "skin" original: excoriat — literally to strip the skin off, used here metaphorically to mean stripping away the children's financial future. the children of the "first bed" original: primithori — children from the first marriage.. Furthermore, it cannot be argued, as a few Doctors of Law do, that the Constitution of the Edictal Law has been abolished by a general lack of use desuetudo: the legal principle that a law is no longer valid because it has not been practiced for a long time throughout the whole Empire. For if a lack of use, or a custom, is contrary to written Law, then it must be proven fully and with exactness. Regarding custom, it is not enough to prove common observation, since that alone does not create a customary law. See Mynsinger, decade 2, response 13, number 13.

In many places in Germany, this Constitution is clearly seen inserted into the local Statutes. Such as in the Palatinate and Zweibrücken Land Ordinance, title 100, the section "but the Mother, etc." So also in the Jülich Ordinance on Succession and Inheritance, under the heading "How Father or Mother, and other Parents, shall have their children as heirs, when they enter into a second marriage." Likewise, in the Reformation and Ordinance of the City of Wimpfen, title 9. Similarly, Fichardus, in his Legal Opinions, part 2, numbers 11, 13, and 14, cites several legal precedents in which these penalties were judicially approved and judgments were pronounced according to them. Finally, regarding the testimony of the customs and institutions of Germany, P. Gilkenius rightly writes in his Treatise on Prescription, part 3, decision 3, number 228, that many often err through ignorance or excessive rashness.

Indeed, a Father cannot pretend that his late Wife extravagantly consumed her Dowry and other assets, and thereby attempt to burden the son so that he can seek nothing in the name of Maternal Assets bona materna: property that belonged to the mother or her family line. This is especially true since it is a well-known Law that a son who succeeds his Father takes the Maternal assets as a priority; the Father only has the faculty of using them, not of alienating To "alienate" in a legal sense means to sell, give away, or otherwise transfer ownership to another person. them. See the Code, book 6, regarding second marriages, and book 1, regarding maternal goods; also Valentin Forster, Treatise on Succession, book 4, chapter 16, number 2. And Maternal assets must be restored without considering the exception of retention—even on account of things removed by the wife—as stated in the Code, regarding actions on a wife's property. Furthermore, compensation is not granted...