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