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terteram, quia parentum loco ha- 80 only by adoption ; nor his maternal bentur. Qua ratione verum est, aunt; because they are regarded as magnam quoque amitam et mater- being in the place of ascendants. For teram magnam prohiberi uxorem the same reason, no person may marry ducere.
his great aunt, either paternal or
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 materteram.
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 venera- 6. There are, too, other marriages tione quarundam nuptiis absti- from which we must abstain, from nere necesse est. Ut ecce privignam regard to the ties created by marriage ; aut purum uxorem ducere non licet, for example, a man may not marry his quia utræque filiæ loco sunt. Quod wife's daughter, or his son's wife, for scilicet ita accipi debet, si fuit they are both in the place of daughters nurus aut privigna: nam si adhuc to him ; but this must be understood nurus est, id est si adhuc nupta to mean those who have been our stepest filio tuo, alia ratione uxorem daughters or daughters-in-law ; for if eam ducere non poteris, quia eadem a woman is still your daughter in-law, duobus nupta esse non potest : item that is, if she is still married to your si adhuc privigna tua est, id est si son, you cannot marry her for another mater ejus tibi nupta est, ideo eam reason, as she cannot be the wife of uxorem ducere non poteris, quia two persons at once. And if your stepduas uxores eodem tempore habere daughter is still your stepdaughter, non licet.
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. Gal. 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 7. Again, a man is forbidden to prohibitum est uxorem ducere, quia marry his wife's mother, and his father's matris loco sunt. Quod et ipsum wife, because they hold the place of dissoluta demum adfinitate procedit: mothers to him ; a prohibition which alioquin si adhuc noverca est, id can only operate when the affinity is est si adhuc patri tuo nupta est, dissolved ; for if your stepmother is communi jure impeditur tibi nubere, still your stepmother, that is, if she is quia eadem duobus nupta esse non still married to your father, she would potest : item si adhuc socrus est, id be prohibited from marrying you by est si adhuc filia ejus tibi nupta est, the common rule of law, which forbids ideo impediuntur nuptiæ, quia duas a woman to have two husbands at the uxores habere non potes.
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
Gal. 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 8. The son of a husband by a former uxore et uxoris filia ex alio marito, wife, and the daughter of a wife by a vel contra, matrimonium recte con- former husband, or the daughter of a trahunt, licet habeant fratrem so- husband by a former wife, and the son roremve ex matrimonio postea con- of a wife by a former husband, may tracto natos.
lawfully contract marriage, even though they have a brother or sister born of
the second marriage. 9. Si uxor tua post divortium ex 9. The daughter of a divorced wife alio filiam procreaverit, hæc non est by a second husband, is not your stepquidem privigna tua, sed Julianus daughter ; and yet Julian says we hujusmodi nuptiis abstinere debere ought to abstain from such a marriage. ait: nam nec sponsam filii nurum For the woman betrothed to your son esse nec patris sponsam novercam is not your daughter-in-law ; nor is the esse, rectius tamen et jure facturos woman betrothed to you your son's eos, qui hujusmodi nuptiis se absti- stepmother ; and yet it is more decent nuerint.
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 10. It is certain that the relationquoque cognationes impedimento ships of slaves are an impediment to esse nuptiis, si forte pater et filia aut marriage, if the father and daughter, frater et soror manumissi fuerint. 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 11. There are other persons also, propter diversas rationes nuptias between whom marriage is prohibited contrahere prohibentur, quas in li- for different reasons, which we have bris digestorum seu pandectarum ex permitted to be enumerated in the veteri jure collectarum enumerari books of the Digests or Pandects, permisimus.
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 Poppod. (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 abjectieve persona. (C. 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 justo nuptice with, a Latina or a peregrina unless he received permission from the emperor to contract justo nuptiæ with such a person, a permission which Gaius tells us was often accorded to veterans. (Gal. 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 justo nuptice. 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, 12. If persons unite themselves in aliqui coierint, nec vir nec uxor contravention of the rules thus laid nec nuptiæ nec matrimonium nec down, there is no husband or wife, no dos intellegitur. Itaque ii, qui ex nuptials, no marriage, nor marriage
eo coitu nascuntur, in potestate portion, and the children born in such patris non sunt, sed tales sunt, a connection are not in the power of quantum ad patriam potestatem the father. For, with regard to the pertinet, quales sunt ii, quos mater power of a father, they are in the vulgo concepit. Nam nec hi patrem position of children conceived in prohabere intelleguntur, cum his etiam stitution, whoare looked uponas having incertus est: unde solent filii no father, because it is uncertain who spurii appellari, vel a Græca voce he is ; and are therefore called spirii, quasi otopádnu concepti, vel quasi either from a Greek word otopáòny, sine patre filii. Sequitur ergo, ut meaning 'at hazard,' or as being sine et dissoluto tali coitu nec dotis ex- patre, without a father. On the dissoactioni locus sit. Qui autem pro- lution, therefore, of such a connection, hibitas nuptias coeunt, et alias there can be no claim made for the pænas patiuntur, quæ sacris con- demand of a marriage portion. Perstitutionibus continentur.
sons 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 (conoubinatus) 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 astimari oportet. (D. xxv. 7. 4.) If there was no ati'ectio 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 13. It sometimes happens that liberi quidem statim, ut nati sunt, children who at their birth were not in in potestate parentum non fiant, the power of their father, are brought postea autem redigantur in pote- under it afterwards. Such is the case statem. Qualis est is, qui, dum of a natural son, who is given to the naturalis fuerat, postea curiæ datus curia, and then becomes subject to his potestati patris subicitur. Nec non father's power. Again, a child born of is, qui a muliere libera procreatus, a free woman, with whom marriage cujus matrimonium minime legi- was not prohibited by any law, but bus interdictum fuerat, sed ad with whom the father only cohabited, quam pater consuetudinem habu- will likewise become subject to the erat, postea ex nostra constitutione power of his father if at any time afterdotalibus instrumentis compositis, in wards dotal instruments are drawn potestate patris efficitur : quod et up according to the provisions of our alii si ex eodem matrimonio fuerint constitution. And this constitution procreati, similiter nostra constitutio carries with it the same result as to præbuit.
any other children who may be subse
quently born of the same marriage. Gal. 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