THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
~  XXIX  ~
THE CHILDREN OF FEMALE SLAVES BORN UPON THE LAND OF ANOTHER BELONG TO THEIR MASTERS.



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

 
The Same Emperor to the Same Stylianus.

  As We know that this discourse is true and just, and is not contaminated with the perversity of falsehood, in like manner, We should consider as equitable a law which is not tainted with inequity. Therefore, where this rule is not observed, a legislative enactment is not a law, even though it may be considered worthy of the name. This is a law, for instance: "Let everyone be given what belongs to him;" for how can a rule of action be legal which does not enjoin this? Among such laws, one of the most remarkable is that which provides that where a female slave, who has been taken from her master by theft, or in any other way, brings forth a child while absent, instead of being returned to him along with her offspring when the crime is detected, she alone shall be surrendered and her child shall belong to the person in whose possession she was when it was born. We, considering this provision to be extremely unjust, have deemed it proper to correct it, hence We decree that the child shall follow its mother and be delivered up to her master; for, as the mother must be returned to him as prescribed by this law, it does not follow that he should be deprived of her child, to the advantage of the person on whose premises it was born, for the latter is sufficiently recompensed through having been able to profit by the services of the mother. Perhaps it might be alleged that if the person in whose possession she was ought to be reimbursed, that the best way to do this is for him to keep the child. But if such a reason can be advanced for retaining it, it is evident that he would only have to increase the sum to which he had a right by way of indemnity, in order to keep the mother also, and is it not more just that he who has suffered the annoyance of having lost her should be indemnified by the benefit of the increase, than that this benefit should be accorded to one who had not lost anything, as he can be indemnified for what the mother cost him, and, in addition to this, has profited by her services? Therefore, as We have already stated, he cannot keep the child, and it shall be restored with its mother to her master; but whether he who committed the theft is wealthy enough to make good to him the price paid for his female slave, or whether he is dead, or in poverty, and not able to return the purchase-money, it is always more equitable for the owner who has lost his slave to be indemnified for this misfortune by recovering both her and her child.