and position, and of sacred and human law, divini et humani juris communicatio (D. xxiii. 2. 1), but not necessarily of property. Marriage gave neither party any right over the property of the other, except when the wife passed in manum, and then all that she had belonged to the husband. For the meaning of individua compare Tacitus, Ann. vi. 10, apud Capreas individui' (never parted).

2. Jus autem potestatis, quod in liberos habemus, proprium est civium Romanorum; nulli enim alii sunt homines, qui talem in liberos habeant potestatem, qualem nos habemus.

2. The power which we have over our children is peculiar to the citizens of Rome; for no other people have a power over their children, such as we have over ours.

GAI. i. 55.

Gaius mentions the Galatæ as being reported to have had a similar institution.

3. Qui igitur ex te et uxore tua nascitur, in tua potestate est: item qui ex filio tuo et uxore ejus nascitur, id est nepos tuus et neptis, æque in tua sunt potestate, et pronepos et proneptis et deinceps ceteri. Qui tamen ex filia tua nascitur, in tua potestate non est, sed in patris ejus.

3. The child born to you and your wife is in your power. And so is the child born to your son of his wife, that is, your grandson or granddaughter; so are your great grandchildren, and all your other descendants. But a child born of your daughter is not in your power, but in the power of its own father.

If a woman, although she was not in the power of her husband, had children, they were not in her power; and hence, as she could have no descendants in her power, it was said, mulier familiæ suæ et caput et finis est, i.e. her family ended with herself. (D. 1. 16. 195. 5.)

TIT. X. DE NUPTIIS.

Justas autem nuptias inter se cives Romani contrahunt, qui secundum præcepta legum coeunt, masculi quidem puberes, feminæ autem viripotentes, sive patresfamilias sint sive filiifamilias, dum tamen filiifamilias et consensum habeant parentum, quorum in potestate sunt. Nam hoc fieri debere et civilis et naturalis ratio suadet in tantum, ut jussum parentis præcedere debeat. Unde quæsitum est, an furiosi filia nubere aut furiosi filius uxorem ducere possit? Cumque super filio variabatur, nostra processit decisio, qua permissum est ad exemplum filiæ furiosi filium quoque posse et sine patris interventu matrimonium sibi copulare secundum datum ex constitutione modum.

Roman citizens form the tie of lawful marriage with each other when they are united according to law, the males having attained the age of puberty, and the females a marriageable age, whether they are patresfamilias or filiifamilias ; but, if the latter, they must first obtain the consent of their ascendants, in whose power they are. For both natural reason and the law require this consent; so much so, indeed, that it ought to precede the marriage. Hence the question has arisen, whether the daughter of a madman could be married, or his son marry? And as opinions were divided as to the son, we decided that as the daughter of a madman might, so may the son of a madman marry without the intervention of the father, according to the mode established by our constitution.

C. v. 4. 25.

In the earliest times of Roman law there were three modes of forming the tie of marriage; first confarreatio, a religious ceremony, in which none but those to whom the jus sacrum was open conld take part; secondly, coemptio, a fictitious sale, in which the wife was sold to the husband; and lastly usus, i.e. cohabitation with the intention of forming a marriage. All three modes had the same effect on the position of the wife. She always passed in manum viri. (See Introd. sec. 46.) This incident of marriage was attached to the marriage by mere cohabitation and lapse of time, on the analogy of the ownership which was acquired in a thing by uninterrupted possession. It was, however, open to the wife to break the use;' to prevent, that is, her husband gaining complete power over her by lapse of time: the law of the Twelve Tables declared that, if the wife absented herself from her husband for three nights in the year, the usus should be interrupted, and she should remain in her own fumilia, and not pass into that of her husband. This was considered so much more advantageous to the wife, as by passing into the manus she occupied the position of a daughter in the power of her husband, and all her property belonged to him, that, even in the latter days of the republic, almost all marriages were formed without the wife passing into the manus of her husband. In the time of Justinian she never did so, and the whole distinction of the effect of different modes of marriage had been long obsolete. The nuptia were equally justo whether the wife passed in manum or not. A wife who did not pass in manum and who was not emancipated remained in the power of her father, and so she remained when the marriage was by confarreatio under a law passed in the time of Tiberius. (GAIUS, i. 136.) The wife who passed in manum was termed à materfamilias, the wife who did not was a matrona. (Cic. in top. c. 3.)

At no time did these different modes of being married form part of the real tie of marriage; they only decided, when the tie of marriage was formed, what should be the position of the wife. Neither were the religious ceremonies nor the nuptial rites anything more than accessories of that which created the binding relation between the parties. The tie itself was constituted by the consent of the parties-by their intention to become man and wife-being expressed and manifested; and the mode in which it was necessary the manifestation should take place was that the woman should pass into her husband's possession. A man and woman were not married because they lived together, unless they had the intention to be married. Nuptias non concubitus sed consensus facit. (D. xxxv. 1. 15.) Neither was the mere expression of a consent sufficient to constitute a marriage. There must be an actual or constructive passing of the woman into the possession of the man. The ordinary sign of this was that she was received into the husband's house, in domum deduci; but this was only the usual and most patent sign, and any other clear indication was accepted. If,

for example, the parties were both personally present and formally consented, the woman was taken to have placed herself, or been placed if she was in manu, in the possession of the man (C. v. 17. 11), and the marriage tie was formed; while, on the other hand, a marriage could not be effected by a mere written consent between persons not present together, as by letter (D. xxiii. 2. 5), without the woman passing into the man's possession by some separate distinct act, such as being received into his house.

In order that the marriage might have the effect of justo nuptiæ, it was necessary that three conditions should be fulfilled. 1. There must be the consent of the parties duly manifested; 2. The parties must be puberes, i.e. the man must be fourteen and the woman twelve years of age; and 3. They must have the connubium, or legal power of contracting marriage, which may be regarded under three heads :-1. Under the old law both parties were required to be citizens, or to have had so much of citizenship given them as would enable them to form justa nuptiæ. Various changes were made on this head, which will be noticed under section 11 of this Title. 2. They must not stand within the prohibited degrees of relationship; what these were is discussed in the following paragraphs of this Title. 3. If under the power of any one, they must have obtained that person's consent. The husband was obliged, even though in his grandfather's power, to obtain his father's consent; otherwise the grandfather could have eventually increased the number of the father's family without consulting him (D. i. 7. 7), which it was against the spirit of the law to allow, as no one could have a new suus heres forced on him by agnation against his will. (See Tit. 11. 7.)

The same reason had caused the doubt adverted to in the text, whether, even if the father was incapable of giving his consent, the son could introduce new members into his father's family. This did not apply to the daughter, who could not introduce new members into her father's family. Justinian, in the Code, prescribed the mode in which marriage might be validly made either by the son or daughter of a madman. The son or daughter of the madman was to submit the proposed marriage to be approved, and the gift to the wife and the dos to be fixed, by the præfectus urbi at Constantinople, by the præses or bishop of the city in the provinces, in the presence of the curator of the madman and his principal relations. Marcus Aurelius had previously provided for the case of children of imbecile persons, dementes. (C. v. 4. 25.) Where the rights of the paterfamilias were not in question, as when the son was emancipated, it was not necessary to have the father's consent. (D. xxiii. 2. 25.)

If the persons, whose consent was necessary, did not give it, the marriage was absolutely void, and therefore no subsequent consent could ratify it. Thus Justinian says here that the consent, jussus (a word denoting the authority of the paterfamilias), must precede the marriage. It was not, however, necessary that the consent

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should be expressly given. If the paterfamilias knew of the marriage and did not oppose it, his assent was presumed (C. v. 4. 5); and if he was absent or a captive for three years, his children might form a marriage which he could not afterwards disapprove of. (D. xxiii. 2. 9. 10.) If both or either of the parties were impuberes at the time of the marriage, the marriage, though then invalid, became valid by their living together with the intention of being married after puberty was attained. (D. xxiii. 2. 4.)

1. Ergo non omnes nobis uxores ducere licet: nam quarundam nuptiis abstinendum est. Inter eas enim personas, quæ parentum liberorumve locum inter se optinent, nuptiæ contrahi non possunt, veluti inter patrem et filiam vel avum et neptem vel matrem et filium vel aviam et nepotem et usque ad infinitum: et si tales personæ inter se coierunt, nefarias atque incestas nuptias contraxisse dicuntur. Et hæc adeo ita sunt, ut, quamvis per adoptionem parentum liberorumve loco sibi esse cceperint, non possint inter se matrimonio jungi, in tantum, ut etiam dissoluta adoptione idem juris maneat: itaque eam, quæ tibi per adoptionem filia aut neptis esse coeperit, non poteris uxorem ducere, quamvis eam emancipaveris.

1. We may not marry every woman without distinction; for with some, marriage is forbidden. Marriage cannot be contracted between persons standing to each other in the relation of ascendant and descendant, as between a father and daughter, a grandfather and his granddaughter, a mother and her son, a grandmother and her grandson; and so on, ad infinitum. And, if such persons unite together, they only contract a criminal and incestuous marriage; so much so, that ascendants and descendants, who are only so by adoption, cannot intermarry; and even after the adoption is dissolved, the prohibition remains. You cannot, therefore, marry a woman who has been either your daughter or granddaughter by adoption, although you may have emancipated her.

GAI. i. 58, 59.

When two persons were related by being agnati to each other, they were exactly in the same relative position, so far as regarded the power of marrying, as if they had been related in the same degree by blood. If the tie of agnatio was dissolved by emancipation, the tie of blood, if any, would of course remain, and be a bar to marriage; but if there was no tie of blood, that is, if one of the parties had entered the family by adoption, then, if the emancipated person had, while the agnatio subsisted, occupied the position of ascendant or descendant to the other person, marriage was forbidden, but if that of a collateral, it was allowed.

2. Inter eas quoque personas, quæ ex transverso gradu cognationis junguntur, est quædam similis observatio, sed non tanta. Sane enim inter fratrem sororemque nuptiæ prohibitæ sunt, sive ab eodem patre eademque matre nati fuerint, sive ex alterutro eorum. Sed si qua per adoptionem soror tibi esse coeperit, quamdiu quidem constat adoptio, sane inter te et eam nuptiæ consistere non possunt: cum vero per emancipationem adoptio dissoluta sit, pot

2. There are also restrictions, though not so extensive, on marriage between collateral relations. A brother and sister are forbidden to marry, whether they are the children of the same father and mother, or of one of the two only. And, if a woman becomes your sister. by adoption, so long as the adoption subsists, you certainly cannot marry her; but, if the adoption is destroyed by emancipation, you may marry her; as you may also, if you yourself are emancipated. Hence it fol

D

eris eam uxorem ducere: sed et si tu emancipatus fueris, nihil est impedimento nuptiis. Et ideo constat, si quis generum adoptare velit, debere eum ante filiam suam emancipare et si quis velit nurum adoptare, debere eum ante filium emancipare.

lows, that if a man would adopt his son-in-law, he ought first to emancipate his daughter; and if he would adopt his daughter-in-law, he ought previously to emancipate his son.

GAI. i. 60, 61; D. xxiii. 2. 17. 1.

To adopt a son-in-law would be to make him brother by agnation of his own wife. The bar did not invalidate the previous marriage, but operated to restrain the adoption, until the daughter had been emancipated.

3. Fratris vel sororis filiam uxorem ducere non licet. Sed nec neptem fratris vel sororis ducere quis potest, quamvis quarto gradu sint. Cujus enim filiam uxorem ducere non licet, ejus neque neptem permittitur. Ejus vero mulieris, quam pater tuus adoptavit, filiam non videris impediri uxorem ducere, quia neque naturali neque civili jure tibi conjungitur.

3. A man may not marry the daughter of a brother, or a sister, nor the granddaughter, although she is in the fourth degree. For when we may not marry the daughter of any person, neither may we marry the granddaughter. But there does not appear to be any impediment to marrying the daughter of a woman whom your father has adopted; for she is not connected with you, either by natural or civil law.

GAI. i. 62; D. xxiii. 2. 12. 4.

In the direct line every degree represents a generation. The son is in the first degree with respect to his father; the grandson in the second with respect to his grandfather. In the collateral line the generations are taken first up to and then down from the common ancestors. For instance, first-cousins are in the fourth degree. From either cousin to his father is one degree, from the father to the grandfather is another, from the grandfather to the father of the other cousin is a third, and from that father to that cousin is a fourth.

The marriage of an uncle with a niece had been legalised in favour of Claudius and Agrippina (SUET. in Claud. 26); but prohibited by Constantine. (Cod. Theod. i. 2.)

The children never followed the family of the mother, and therefore, though she was adopted, remained as they were before. But of course a daughter could not have married an adopted son's

son.

4. Duorum autem fratrum vel sororum liberi vel fratris et sororis jungi possunt.

4. The children of two brothers or two sisters, or of a brother and sister, may marry together.

D. xxiii. 2. 3.

The marriage of first-cousins, forbidden by preceding emperors, had again been legalised by Arcadius and Honorius. (C. v. 4. 19.)

5. Item amitam, licet adoptivam, 5. So, too, a man may not marry uxorem ducere non licet, item ma- his paternal aunt, even though she is