terteram, quia parentum loco habentur. Qua ratione verum est, magnam quoque amitam et materteram magnam prohiberi uxorem ducere.

so only by adoption; nor his maternal aunt; because they are regarded as being in the place of ascendants. For the same reason, no person may marry his great aunt, either paternal or maternal.

GAI. i. 62; D. xxiii. 2. 17. 2.

It was, of course, only possible to be in the same family with an adopted aunt on the father's side. A mother's sister by adoption would be in the family to which the mother belonged by birth, whereas the nephew would be in the family of the father, and therefore adoptivam is added to amitam only, not to mater

teram.

Every person in the first degree from a common ancestor was considered, so far as regarded marriage, in the position of that ancestor. Thus an aunt, being in the first degree from the grandfather, the common ancestor, was looked upon as standing in the place of that grandfather (parentis loco habetur), and could not therefore marry her nephew. A cousin would be in the second degree from the common ancestor, and therefore proximity would not be a bar to the union.

6. Adfinitatis quoque veneratione quarundam nuptiis abstinere necesse est. Ut ecce privignam aut nurum uxorem ducere non licet, quia utræque filiæ loco sunt. Quod scilicet ita accipi debet, si fuit nurus aut privigna: nam si adhuc nurus est, id est si adhuc nupta est filio tuo, alia ratione uxorem eam ducere non poteris, quia eadem duobus nupta esse non potest : item si adhuc privigna tua est, id est si mater ejus tibi nupta est, ideo eam uxorem ducere non poteris, quia duas uxores eodem tempore habere non licet.

6. There are, too, other marriages from which we must abstain, from regard to the ties created by marriage; for example, a man may not marry his wife's daughter, or his son's wife, for they are both in the place of daughters to him; but this must be understood to mean those who have been our stepdaughters or daughters-in-law; for if a woman is still your daughter in-law, that is, if she is still married to your son, you cannot marry her for another reason, as she cannot be the wife of two persons at once. And if your stepdaughter is still your stepdaughter, that is, if her mother is still married to you, you cannot marry her, because a person cannot have two wives at the same time.

GAI. i. 63.

Affinitas is the tie created by marriage between each person of the married pair and the kindred of the other.

7. Socrum quoque et novercam prohibitum est uxorem ducere, quia matris loco sunt. Quod et ipsum dissoluta demum adfinitate procedit: alioquin si adhuc noverca est, id est si adhuc patri tuo nupta est, communi jure impeditur tibi nubere, quia eadem duobus nupta esse non potest item si adhuc socrus est, id est si adhuc filia ejus tibi nupta est,

7. Again, a man is forbidden to marry his wife's mother, and his father's wife, because they hold the place of mothers to him; a prohibition which can only operate when the affinity is dissolved; for if your stepmother is still your stepmother, that is, if she is still married to your father, she would be prohibited from marrying you by the common rule of law, which forbids

ideo impediuntur nuptiæ, quia duas uxores habere non potes.

a woman to have two husbands at the same time. So if your wife's mother is still your wife's mother, that is, if her daughter is still married to you, you cannot marry her, because you cannot have two wives at the same time.

GAI. i. 63.

The Institutes do not notice the marriage of a brother and sister-in-law. It was permitted up to the time of Constantine, who forbad it. (Cod. Theod. i. 2.) The prohibition was renewed by Valentinian, Theodosius, and Arcadius. (C. v. 5. 5.)

8. Mariti tamen filius ex alia uxore et uxoris filia ex alio marito, vel contra, matrimonium recte contrahunt, licet habeant fratrem sororemve ex matrimonio postea con

tracto natos.

9. Si uxor tua post divortium ex alio filiam procreaverit, hæc non est quidem privigna tua, sed Julianus hujusmodi nuptiis abstinere debere ait: nam nec sponsam filii nurum esse nec patris sponsam novercam esse, rectius tamen et jure facturos eos, qui hujusmodi nuptiis se absti

nuerint.

8. The son of a husband by a former wife, and the daughter of a wife by a former husband, or the daughter of a husband by a former wife, and the son of a wife by a former husband, may lawfully contract marriage, even though they have a brother or sister born of the second marriage.

9. The daughter of a divorced wife by a second husband, is not your stepdaughter; and yet Julian says we ought to abstain from such a marriage. For the woman betrothed to your son is not your daughter-in-law; nor is the woman betrothed to you your son's stepmother; and yet it is more decent and more in accordance with law to abstain from such marriages.

D. xxiii. 2. 12. 1, and foll.

The sponsalia constituted in no way a binding tie. They were, as far as law went, mutual promises to contract a tie. Sponsalia sunt sponsio et repromissio nuptiarum futurarum. (D. xxiii. 1. 1.) All that was necessary was, that the parties, and their respective patresfamilias, should consent, and that the betrothed should have attained the age of seven years. Either party wishing to renounce the engagement, which, by law, was always permissible, could do so by announcing the wish in these words-conditione tua non utor, and forfeiting the arrhæ, i.e. things given as earnest or security that the promise should be kept, if any had been given. Hence it could only be custom founded on a respect for boni mores that prevented a father marrying his son's betrothed, or a son his father's.

10. Illud certum est, serviles quoque cognationes impedimento esse nuptiis, si forte pater et filia aut frater et soror manumissi fuerint.

10. It is certain that the relationships of slaves are an impediment to marriage, if the father and daughter, or brother and sister, as the case may be, have been enfranchised.

D. xxiii. 2. 14. 2.

The union of slaves, contubernium, was not recognised in law as a marriage, but still the law did not permit natural ties to be

violated in the case of slaves, any more than in the case of the issue of concubinage, or that of illicit commerce. (C. v. 4. 4.) Of course a manumission must have taken place, or there could be no question of nuptiæ; but if slaves were freed, then, although competent to contract a marriage, they were bound by the ties of blood, and could not marry any one connected with them by close natural relationship.

11. Sunt et aliæ personæ, quæ propter diversas rationes nuptias contrahere prohibentur, quas in libris digestorum seu pandectarum ex veteri jure collectarum enumerari permisimus.

11. There are other persons also, between whom marriage is prohibited for different reasons, which we have permitted to be enumerated in the books of the Digests or Pandects, collected from the old law.

D. xxiii. 2. 44, pr. and 1.

The reasons referred to are not, like the preceding, founded on nearness of relationship or other tie, but on public or political grounds. The patres and plebs could not intermarry till the lex Canuleia. Nor the freeborn and freedmen till the lex Julia et Papia Poppaa. (D. xxiii. 2. 23; see Introd. sec. 17.) This law prohibited the marriage of senators with freedwomen, but allowed that of other freeborn, forbidding at the same time all freeborn to marry actresses or women of openly bad character. (D. xxiii. 2. 41.) Constantine extended the prohibition as regarded persons of high rank to marrying freewomen of the lowest class, humiles abjectave persona. (Č. v. 27. 1.) This was repealed by Justinian. (Nov. 117. 6.) The guardian could not marry his ward before she was twenty-six years of age, unless betrothed or given to him by her father. (D. xxiii. 2. 66.) The governor of a province could not, while he held his office, marry a native of that province (D. xxiii. 2. 38. 57), lest he should abuse his authority. The ravisher could not marry the woman he violated. (C. ix. 13. 2.) Nor the adulterer his accomplice. (Nov. 134.) Nor a Jew a Christian. (C. i. 9. 6.)

While the distinction between Latini (colonarii) and cives remained in force, a citizen had not connubium with, and therefore could not contract justæ nuptice with, a Latina or a peregrina unless he received permission from the emperor to contract justæ nuptia with such a person, a permission which Gaius tells us was often accorded to veterans. (GAI. i. 57; ULP. Reg. v. 4.) But the unauthorised union of a citizen with a Latina or peregrina was recognised as matrimonium, though not as justæ nuptiæ. The wife was termed in such a case injusta uxor. None of the rules of law as to patria potestas and dos applied to such a union, but the breach of the tie would be looked on as adultery. (D. xlviii. 5. 13. pr. 1.)

12. Si adversus ea, quæ diximus, aliqui coierint, nec vir nec uxor nec nuptiæ nec matrimonium nec dos intellegitur. Itaque ii, qui ex

12. If persons unite themselves in contravention of the rules thus laid down, there is no husband or wife, no nuptials, no marriage, nor marriage

eo coitu nascuntur, in potestate patris non sunt, sed tales sunt, quantum ad patriam potestatem pertinet, quales sunt ii, quos mater vulgo concepit. Nam nec hi patrem habere intelleguntur, cum his etiam incertus est: unde solent filii spurii appellari, vel a Græca voce quasi σποράδην concepti, vel quasi sine patre filii. Sequitur ergo, ut et dissoluto tali coitu nec dotis exactioni locus sit. Qui autem prohibitas nuptias coeunt, et alias poenas patiuntur, quæ sacris constitutionibus continentur.

portion, and the children born in such a connection are not in the power of the father. For, with regard to the power of a father, they are in the position of children conceived in prostitution, who are looked upon as having no father, because it is uncertain who he is; and are therefore called spurii, either from a Greek word σποράδην, meaning 'at hazard,' or as being sine patre, without a father. On the dissolution, therefore, of such a connection, there can be no claim made for the demand of a marriage portion. Persons who contract prohibited marriages are liable also to further penalties set forth in our imperial constitutions.

GAI. i. 64; D. i. 5. 23; D. xxiii. 2. 52.

Under the head of stuprum the Romans included every union of the sexes forbidden by morality. Different punishments awaited the guilty according to the degree of crime implied in the union. (Cod. v. 5. 4.) But the law recognised and regulated in concubinage (concubinatus) a permanent cohabitation, though without the sanction of marriage, between parties to whose marriage there was no legal obstacle. In every case where such an obstacle existed, unless the obstacle was one merely founded on public policy, such as that of being governor of a province, who was not permitted to marry a native of that province, the law inflicted a punishment on parties cohabiting in defiance of law. The chief incident of the Roman concubinatus, which was so far restricted that a man could not have two concubines at once, or a wife and a concubine, was, that the children could be legitimatised, and so placed on a footing with the offspring of a legal marriage. Between the formation of such a union, and the contracting a legal marriage, there seems to have been no difference except what rested in the intention of the parties. If two persons lived together, it was the intention with which they did so which decided whether the union was concubinage or marriage. Concubinam ex sola animi destinatione æstimari oportet. (D. xxv. 7.4.) If there was no affectio maritalis, no intention to treat the woman as a wife, she was not a wife. Of course, practically, the question of consent. was seldom, if ever, left doubtful. Generally speaking, an instrument fixing the amount settled respectively by the husband and wife, was drawn up, and the consent was publicly given in the presence of friends. And as concubinage was a dishonourable state, the presumption in favour of marriage, when the woman was of honest parentage, and of good character, was very strong. To the union of concubinage none of the incidents of marriage attached. No dos could be asked for, no donatio was made by the man: the children were not in the power of the father.

In a legal marriage, without conventio in manum, the marriage portion of the wife (dos) belonged to the husband during the continuance of the marriage. In early times his power over the dos was unrestricted, but afterwards successive limitations of this power were introduced. (See Bk. ii. Tit. 7. 3; Tit. 8. introd. paragr.) The settlement on the wife by the husband (donatio propter nuptias) belonged, during the marriage, to the wife, but was managed by the husband. (See Bk. ii. Tit. 7. 3.) Divorce was always permitted if either party ceased to wish to preserve the tie of marriage, which was only looked on as a contract resting on mutual consent. A woman in manu could not divorce herself from her husband, while a woman, not in manu but in the potestas of her father, might be divorced from her husband by her father, but Marcus Aurelianus forbade the father to exercise his power except for some grave reasons. (Cod. v. 17. 5.) Unless, however, both parties consented to a divorce, heavy penalties were attached to its being insisted on by one alone, unless any of the grounds for divorce established by law, such as adultery or criminal conduct (Cod. v. 17. 8), could be shown to exist; and the fact of repudiation had to be established by the presence of seven citizens as witnesses, and a libellus repudii. After the divorce either party might, after a fixed interval, marry again, until, at a late period of Roman law, this power of remarriage was curtailed by the Theodosian code. (Cod. Th. iii. 16. 2.)

13. Aliquando autem evenit, ut liberi quidem statim, ut nati sunt, in potestate parentum non fiant, postea autem redigantur in potestatem. Qualis est is, qui, dum naturalis fuerat, postea curiæ datus potestati patris subicitur. Nec non is, qui a muliere libera procreatus, cujus matrimonium minime legibus interdictum fuerat, sed ad quam pater consuetudinem habuerat, postea ex nostra constitutione dotalibus instrumentis compositis, in potestate patris efficitur: quod et alii si ex eodem matrimonio fuerint procreati, similiter nostra constitutio præbuit.

13. It sometimes happens that children who at their birth were not in the power of their father, are brought under it afterwards. Such is the case of a natural son, who is given to the curia, and then becomes subject to his father's power. Again, a child born of a free woman, with whom marriage was not prohibited by any law, but with whom the father only cohabited, will likewise become subject to the power of his father if at any time afterwards dotal instruments are drawn up according to the provisions of our constitution. And this constitution carries with it the same result as to any other children who may be subsequently born of the same marriage. GAI. i. 65; C. v. 27. 10.

By legitimation the offspring of concubinage were placed in the position of liberi legitimi, and this was effected in three ways: 1. By oblation to the curia; 2. By the subsequent marriage of the parents; and 3. By a rescript of the emperor, a mode introduced by Justinian in the 74th Novel. The curia was the class from which, in provincial towns, the magistrates were eligible. To be a member was a distinction, but an onerous one, from the expenses and burdens attached to the position. In order to prevent