§3.6.96testamenta legibus facta rata sint.
Let wills made according to the laws be valid.
intestatorum parentium liberi heredes sint.
Let the children of intestate parents be heirs.
abdicatus ne quid de bonis patris capiat.
Let a disinherited son take nothing from his father's property.
nothus ante legitimum natus legitimus filius sit, post legitimum nanus tantum civis.
Let a bastard born before a legitimate child be a legitimate son; let one born after a legitimate child be only a citizen.
in adoptionem dare liceat.
Let it be lawful to give in adoption.
in adoptionem dato redire in familiam liceat, si paler naturalis sine liberis decesserit.
Let it be lawful for one given in adoption to return to his original family, if his natural father has died without children.
§3.6.97qui ex duobus legitimis alterum in adoptionem dederat, alterum abdicaverat, sustulit nothum; institute herede abdicato decessit.
A man who, of two legitimate sons, had given one in adoption and disinherited the other, acknowledged a bastard; he died having appointed the disinherited son as heir.
tres omnes de bonis contendunt.
All three contend for the property.
nothum, qui non sit legitimus, Graeci vocant; Latinum rei nomen, ut Cato quoque in oratione quadam testatus est, non habemus ideoque utimur peregrino.
The Greeks call him 'nothus' who is not legitimate; we do not have a Latin name for this thing, as Cato also testified in a certain speech, and therefore we use a foreign word.
sed ad propositum.
But to our purpose.
§3.6.98heredi scripto opponitur lex, abdicatus ne quid de bonis patris capiat; fit status scripti et voluntatis, an ullo modo capere possit, an ex voluntate patris, an heres scriptus.
Against the written heir is opposed the law, 'let a disinherited son take nothing from his father's property'; there arises a state of the written text and intention: whether he can take in any way, whether by the intention of the father, whether as the written heir.
notho duplex fit quaestio, quod post legitimos natus sit et quod non sit ante legitimum natus.
For the bastard a double question arises: because he was born after the legitimate children, and because he was not born before a legitimate child.
§3.6.99prior syllogismon habet, an pro non natis sint habendi, qui a familia sunt alienati.
The former has a syllogism: whether those who have been alienated from the family are to be regarded as not born.
altera et scripti et voluntatis.
The latter involves both the written text and intention.
non esse enim hunc natum ante legitimum convenit, sed voluntate legis se tuebitur, quam dicet talem fuisse, ut legitimus esset nothus tum natus, cum alius legitimus in domo non esset.
For it is agreed that he was not born before a legitimate child, but he will defend himself by the intention of the law, which he will say was such that a bastard born at a time when there was no other legitimate child in the house should be legitimate.
§3.6.100scriptum quoque legis excludet dicens, non utique, si postea legitimus natus non sit, notho nocere; uteturque hoc argumento: finge solum natum nothum, cuius condicionis erit? tantum civis? atqui non erit post legitimum natus.
He will also exclude the written text of the law, saying that, if a legitimate child was not born afterwards, it does not by any means harm the bastard; and he will use this argument: "Imagine a bastard born alone, what will be his condition? Only a citizen? But he will not have been born after a legitimate child.
an filius? atqui non erit ante legitimos natus.
Or a son? But he will not have been born before legitimate children.
quare si verbis legis stari non potest, voluntate standum est. §3.6.101nec quemquam turbet, quod ex una lege duo status fiant; duplex est, ita vim duarum habet Redire in familiam volenti dicitur ab altero primum, ut tibi redire liceat, heres sum. idem status, qui in petitione abdicati; quaeritur enim, an possit esse heres abdicatus.
Therefore, if we cannot stand by the words of the law, we must stand by its intention." Nor let it disturb anyone that two states arise from one law; it is twofold, and thus has the force of two laws. To the one wishing to return to his family, it is first said by one of the others: "Granting that it is allowed for you to return, I am the heir." This is the same state as in the petition of the disinherited son; for it is inquired whether a disinherited son can be an heir.
§3.6.102obiicitur communiter a duobus, redire tibi in familiam non licet, non enim pater sine liberis decessit. sed in hoc propria quisque eorum quaestione nitetur.
It is objected commonly by both: "It is not allowed for you to return to the family, for the father did not die without children." But in this each of them will rely on his own proper question.
alter enim dicet abdicatum quoque inter liberos esse, et argumentum ducet ex ipsa, qua repellitur, lege; supervacuum enim fuisse prohiberi patris bonis abdicatum, si esset numero alienorum; Nunc quia filii iure futurus fuerit intestati heres, oppositam esse legem, quae tamen non id efficiat, ne filius sit, sed ne heres sit.
For the one will say that the disinherited son also is among the children, and will draw an argument from the very law by which he is repelled; for it would have been superfluous for a disinherited son to be prohibited from his father's goods, if he were in the number of strangers; now, because he would have been the heir of an intestate by the right of a son, the law was opposed, which, however, does not bring it about that he is not a son, but that he is not the heir.
status finitivus, quid sit filius.
The state is definitive: what is a son.
§3.6.103rursus nothus eisdem colligit argumentis, non sine liberis patrem decessisse, quibus in petitione usus est, ut probaret esse se filium.
Again, the bastard gathers by the same arguments that the father did not die without children, which he used in his own petition to prove that he is a son.
nisi forte et hic finitionem movet, an liberi sint etiam non legitimi.
Unless perhaps he also raises a definition here, whether those who are not legitimate are also children.
cadent ergo in unam controversiam vel specialiter duo legitimi status scripti et voluntatis et syllogismos et praeterea finitio, vel tres illi, qui natura soli sunt, coniectura in scripto et voluntate, qualitas in syllogismo, et, quae per se est aperta, finitio.
Therefore, there will fall into one controversy either, specifically, the two legal states of the written text and intention, and syllogism, and besides these, definition; or those three which alone exist by nature: conjecture in the written text and intention, quality in the syllogism, and definition, which is clear by itself.
§3.6.104causa quoque et iudicatio et continens est in omni genere causarum.
The cause, the point of judgment, and the central point also exist in every kind of cause.
nihil enim dicitur, cui non insit ratio et quo iudicium referatur et quod rem maxime continent.
For nothing is said in which there is not a reason, and to which the judgment is referred, and which most contains the matter.
sed quia magis haec variantur in litibus et fere tradita sunt ab iis, qui de iudicialibus causis aliqua composuerunt, in illam partem differantur.
But because these vary more in lawsuits and have been handed down mostly by those who have composed works on judicial causes, let them be deferred to that part.
nunc, quia in tria genera causas divisi, ordinem sequar.
Now, since I have divided causes into three kinds, I shall follow the order.