THE NEW CONSTITUTIONS OF THE EMPEROR LEO. |
~ XXXVI ~ |
THE
SON OF A CAPTIVE SHALL BE HIS HEIR. |
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( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ). |
The
Same Emperor to the Same Stylianus. |
As
the laws are the support and the foundation of government, in order
that the latter may be preserved, it is necessary for legislation to
remain unimpaired. But who can say that the soundness of the law consists
of anything but equity? Therefore We, exerting Ourselves to see that
the laws of Our Empire are just, have noticed that the one which excludes
the child of two married persons who are in captivity from the succession
of one of them when he or she dies in the hands of the enemy, cannot
be called equitable, We have desired to render it so. It is not difficult
to ascertain in what respect it is unfair, for what influence ought
the nature of the place to have over the appointment of a son as heir?
Nor indeed, should anyone advance as an objection that when a father
is a captive, his son is disinherited on account of his servile condition.
For how can the Civil Law which, when a captive has been released, recognizes
him as free, not permit his freeborn son to be his heir, while it grants
the administration of the property of one who is in the hands of the
enemy to a person who is alleged to be a slave? To whom is it thought
that the property of a captive should belong? Should it pass to his
cognates? And why should the servile status not prevent them from entering
upon the estate, and why should it not be granted to those who, not
long before, were the heirs? Or should it be given to the Treasury?
And why is this not
an obvious injury? For if it is not consonant with reason for the children
of captives to obtain relief from the public, why should it not be a
manifest wrong for the son of a captive to be deprived of his property,
and it be transferred to the Treasury? And as fathers are frequently
punished with death for the commission of serious crimes, and their
children are not prevented by law from acquiring their estates, what
reason is there, when their parents have done themselves credit through
their pious intentions (and, indeed, having shed their blood in testimony
of their faith, they have often elicited the admiration even of impious
persons, on account of their courage and magnanimity), that their children
should not be permitted to become the owners of their estates? This
Constitution does not seem to Us to be worthy of Our Majesty, and therefore
We decree that hereafter a child, whether it was born while its father
and mother were in captivity, or when its mother was free, shall be
the heir of the estates of its parents, whether both of the latter recover
their freedom, or after one has been liberated the other dies in the
hands of the enemy, or even when both of them die before being liberated;
for in all these instances their heirs shall be those appointed by will,
so that their son will be entitled to the third of their estates, as
his lawful share of the same. |
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