Relationship. by the Romans, so that a subsisting marriage incapacitated any one from entering into a second marriage. Relationship within certain degrees, either of consanguinity or affinity, rendered the parties incapable of contracting marriage. Ascendants and descendants to the most remote degree could not marry; and this rule applied to relations by adoption, even after the tie was dissolved. In the collateral line, marriage was prohibited between brothers and sisters, including persons so related by adoption while it subsisted, and also in the special case where one of the parties stood in loco parentis to the other, as uncle and niece, aunt and nephew. For, although the Emperor Claudius was authorised by the Senate to marry his niece Agrippina, and this example was followed by some Romans, the practice was suppressed by Constantine.1 Marriage between cousins-german, which had for some time been prohibited, was declared lawful by Arcadius and Honorius.2 Degrees prohibited in consanguinity were also prohibited in affinity, which is the connection arising from marriage between one of the married persons and the blood relations of the other. Under Constantine, who abrogated the ancient law, marriage was prohibited with the widow of a deceased brother and the sister of a deceased wife.3 These rules as to forbidden degrees have been substantially adopted both in England and Scotland, except that we do not recognise adoption. In the Code Napoleon (articles 161, 162, and 163) the prohibitions are thus expressed : "In the direct line marriage is prohibited between all ascendants and descendants, whether lawful or natural, and persons connected by affinity in the same line. "In the collateral line marriage is prohibited between the brother and sister, whether lawful or natural, and persons connected by affinity in the same degree. Marriage is also prohibited between uncle and niece, aunt and nephew." Some marriages were prohibited by the Romans on grounds of public policy. So governors of provinces were not allowed 1 Cod. Theod., 3. 12. 2. C. 5. 4. 19. 3 Cod. Theod., 3. 12. 2. to take wives from the territory under their administration; guardians could not marry their wards or give them in marriage to their children; and in the later period of the empire, Christians were not permitted to marry Jews. consent, By the Roman law the consent of the father, or paterfa- Father's milias, was indispensable to the marriage of children under when power; but neither the consent of the mother nor that of the necessary. guardian was required. Farther, the tacit consent of the father was sufficient. Rome. In early times celibacy was considered censurable by the Celibacy at Romans. This view passed away in the general degeneracy of manners at Rome, especially after the civil wars at the close of the republic, when the conduct of women of rank rendered marriage exceedingly distasteful to the men. To counteract these evils, Cæsar encouraged marriage by rewards. Augustus went still further, by passing the famous law Julia et Papia Poppæa, containing some severe regulations against celibacy, while solid favours were bestowed on those who had a certain number of children. Little benefit resulted from these laws, which operated very unequally and sometimes oppressively, and they "were frequently defeated by the emperors themselves, who were in use to give the jus trium liberorum to persons who had no children, and even to some who were not married."1 Constantine abolished the penalties of celibacy. Under Augustus, concubinage-the permanent cohabita- Concubintion of an unmarried man with an unmarried woman-was age. authorised by law. The man who had a lawful wife could not take a concubine; neither was any man permitted to take as a concubine the wife of another man, or to have more than one concubine at the same time.2 A breach of these regulations was always condemned, and fell under the head of stuprum. In later times the concubine was called amica. Between persons of unequal rank concubinage was not uncommon; and sometimes it was resorted to by widowers who had already lawful children and did not wish to contract 1 Becker's Gallus, translated by Metcalfe, p. 177. Paul. 2. 20. another legal marriage, as in the cases of Vespasian, Antoninus Pius, and M. Aurelius. As regards the father, the children born in concubinage were not under his power, and were not entitled to succeed as children by a legal marriage; but they had an acknowledged father, and could demand support from him, besides exercising other rights. As regards the mother, their rights of succession were as extensive as those of her lawful children. 1 Under the Christian emperors concubinage was not favoured; but it subsisted as a legal institution in the time of Justinian. At last Leo the Philosopher, Emperor of the East, in A.D. 887, abrogated the laws which permitted concubinage, as being contrary to religion and public decency. "Why," said he, "should you prefer a muddy pool, when you can drink at a purer fountain ? " 2 The existence of this custom, however, was long prolonged in the West among the Franks, Lombards, and Germans; and it is notorious that the clergy for some time gave themselves up to it without restraint,3 Effect on persons of spouses. Effect on property. Sect. 2.--Effects of Roman Marriage. As a general rule resulting from the consortium vitæ, the wife followed the domicile of the husband, and was entitled to protection and support from him. She took his name and rank, and retained them even after his death, so long as she did not enter into a second marriage. All the children born of a lawful marriage fell under the paternal power of the husband, who was always presumed to be the father, unless the contrary was established by certain proof. A child was held to be conceived during the marriage, if it was born not more than ten months after its dissolution.6 With regard to the property of the spouses, we have already 1 D. 25. 7. C. 5. 26. 2 Leon Const. 91. Ortolan, Institutes, vol. ii. p. 102, note. 3 Ducange, voce Concubina. Trop. long, De l'Influence du Christian isme sur le Droit Civil des Romains, 247. p. Mackeldey, § 550. 5 D. 1. 6. 6. 6 D. 38. 16. 3. 11. explained that, in early times, when marriage was entered into with the conventio in manum, the wife became entirely under the power of her husband, and all her property devolved on him. But at a later period, when the conventio was abandoned, marriage had no effect in rendering the property of the spouses common; on the contrary, each was entitled to preserve what was his or her own, and to dispose of it at pleasure. If, therefore, the wife was sui juris, and had a private fortune, she retained it as her own property, entirely separated from that of her husband. At the celebration of the wedding a contract of marriage was frequently entered into, to regulate the pecuniary rights. of the spouses. In early times these contracts were unknown, and were unnecessary in the marriage with manus; but when the manus had become obsolete, the want of such agreements was felt. It was considered to be the duty of the father to give to Dos or dowry. his daughter a marriage-portion or dowry, in proportion to his means. Such dowry was called dos profectitia. When the marriage-portion was given by the wife from her own property, or by any third person, it was called dos adventitia. However, the constitution of a dos was not essential to the validity of marriage; it was one of those things which were regulated by special convention. The husband had the sole management of the dos, and the fruits of it, during the marriage; and he could even exercise over it all acts of ownership, so far as it consisted of movables, but he could not alienate or encumber any part of it which was immovable, or invested in land, even with his wife's consent. As a general rule, the husband's right to the dos ceased on the dissolution of the marriage. According to the last state of the Roman law, when the marriage was dissolved the marriage-portion was restored to the wife or her heirs, and, exceptionally, to the wife's father (profectitia dos), or to the third person who had made the advance, when this had been done under an express reservation that it should return to him (receptitia dos). A different course might be adopted by special convention, as it might be stipulated in the marriage-contract that Donatio propter nuptias. Donations between husband and wife. How far marriage a religious ceremony. the husband should retain the dos, if the marriage was dissolved by the wife predeceasing him.1 All the property of the wife not comprehended in the dowry was called paraphernal (parapherna); the wife remained proprietor of it, and the husband had no rights over it, beyond those which she might relinquish in his favour.2 The donatio propter nuptias was a provision made by the husband for the wife, to be enjoyed by her by way of jointure, in the event of her surviving him. While the marriage subsisted the husband had the management of the whole fund, and applied the funds or profits to support the burdens of matrimony. If the marriage was dissolved by the death of the husband, the donation propter nuptias fell to the wife; but if she predeceased him, it was retained by the husband as his own absolute property.3 In certain circumstances marriage gave rise to reciprocal rights of succession between the spouses, as will be seen when we come to treat of the law of succession. To preserve the marriage relation in its purity, neither husband nor wife, as a general rule, could make a gift of anything to each other during the marriage. Under Septimius Severus the strictness of the law as to these donations was relaxed, and they became valid if the donor died first without having revoked them. There were also exceptions to the general rule. Some donations between husband and wife. were, from their nature, valid and irrevocable, such as remuneratory grants, or those made with a view to a divorce; and a woman could make gifts to her husband in order to qualify him for certain honours.* The Abbé Fleury states that marriage was considered by the earliest Fathers of the Christian Church an ecclesiastical as well as a civil ceremony. But other eminent writers take a different view, and contend that the authorities cited by Fleury do not support his assertion. Among the Romans marriage was purely a civil contract, and so it remained in the time of Justinian. The Emperor Leo the Philosopher, 1 Marezoll, § 165. 3 I. 2. 7. 3. C. 5. 3. C. 5. 16. Mackeldey, § 566. |