THE NEW CONSTITUTIONS OF THE EMPEROR LEO.
~  XXXVI  ~
THE SON OF A CAPTIVE SHALL BE HIS HEIR.



 
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.