THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
~  XXV  ~
CONCERNING EMANCIPATION AND THE RESTITUTION OF THE DOWRY.



 
S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ).
 

 
The Same Emperor to the Same Stylianus.

  Laws promulgated by the ancient Emperors concerning emancipation were excellent and worthy of being preserved from all innovation; and I do not know why they have not obtained the respect to which they were entitled, for while they are not altogether regarded with contempt, they are to a certain degree despised. This is not just. For these laws declare that where slaves are given their freedom, they cannot afterwards be deprived of this right, unless where they had been guilty of one of the forbidden causes by which they could again be reduced to servitude, and are convicted of having committed the offence maliciously, in which case they can again be consigned to the servile condition; and all persons religiously observed these laws and reverenced them. But where children are once released from the control of their parents, and are permitted in every respect to follow their own inclinations, this does not seem to have met with public approval; and the general impression is that this provision, being as it were dishonorable, should not be complied with. But it is now clear that these decrees have been deprived of their force without any good reason, for there is no new law which forbids it. And, indeed, a certain judge has decided, and I wonder upon what grounds, that emancipated children shall enjoy the privilege conferred upon them by this ceremony, but that if they do not themselves have issue, their independence will be abrogated, and they will begin to be subjected to paternal control. Nor did the magistrate referred to confine himself to this, for he added that if the emancipated child himself had children, and lost them, he would not only be deprived of the free exercise of his will, but also would not have testamentary capacity, or be permitted to administer the property bestowed upon him by his parents. This opinion having been adopted by certain persons, their successors were the more readily induced to accept it, so that the ancient legislation having been rejected, these rules are in force at the present time. Therefore We, restoring the authority of the ancient laws which relate to this subject, do hereby decree that no one of those who contests the restitution of a dowry shall be dismissed without the case being fully heard. But what do the ancient laws say? They declare that if an emancipated child should be deprived of his offspring by death, any donation which his father may have given him is revoked for the benefit of the latter; but the same rule does not apply to a gift from his mother, or a stranger, unless it was expressly stipulated that the revocation should take place in this instance also. Nor does this rule apply to a donation made by his father, when he emancipated him, for the laws provide that he shall be entitled to the property included in it, and can dispose of it by will, unless the donation contains something which prohibits this from being done. Therefore We have adopted these provisions without exception, and do hereby decree that when an emancipated child, who himself has no issue, makes a will, his father shall be entitled to what is granted him by the Falcidian Law, unless he renounces his right to the same while making the donation; but no other relatives, even though they may have been called to the succession ab intestato, will have a right to anything whatever, if they neglected to insert a clause with reference to restitution in the agreement. While considering this subject, it is well to note that a child can only be subjected to the authority of a person of the male sex; but, without reference to the other methods of emancipation set forth in these laws, it is clear that a child can be emancipated verbally, either by his father or his grandfather; and We add to these provisions that the child would be emancipated whether the father conferred this privilege on him verbally or not, but merely tacitly permitted him to go and live apart, and, even though he may not be married, his independence must be approved and ratified. For if slaves released from the yoke of servitude cannot again be reduced to slavery so long as they behave themselves properly, why should it not be unworthy for children, when they have been once emancipated, to again be brought under paternal control, and not enjoy the right of always remaining free which is conceded to slaves?