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? |
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