quae ex transverso gradu cognatione iunguntur est quaedam similis observatio, sed non tanta. § 61. Sane inter fratrem et sororem prohibitae sunt nuptiae, sive eodem patre eademque matre nati fuerint, sive alterutro eorum. sed si qua per adoptionem soror mihi esse coeperit, quamdiu quidem constat adoptio, sane inter me et eam nuptiae non possunt consistere; cum vero per emancipationem adoptio dissoluta sit, potero eam uxorem ducere; set et si ego emancipatus fuero, nihil inpedimento erit nuptiis. § 62. Fratris filiam uxorem ducere licet idque primum in usum venit, cum divus Claudius Agrippinam, fratris sui filiam, uxorem duxisset. sororis vero filiam uxorem ducere non licet. et haec ita principalibus constitutionibus significantur. Item amitam et materteram uxorem ducere non licet. § 63. Item eam quae nobis quondam socrus aut nurus aut privigna aut noverca fuit. ideo autem diximus quondam, quia si adhuc constant eae nuptiae per quas talis adfinitas quaesita est, alia ratione inter nos nuptiae esse non possunt, quia neque eadem duobus nupta esse potest, neque idem duas uxores habere. $ 64. Ergo si quis nefarias atque incestas nuptias contraxerit, neque uxorem habere videtur, neque liberos. hi enim qui ex eo coitu nascuntur, matrem quidem habere videntur, patrem vero non utique: nec ob id in potestate eius sunt, sed quales sunt ii quos mater vulgo concepit. nam nec hi patrem habere omnino intelleguntur, cum his etiam incertus sit; unde solent spurii filii appellari, vel a Graeca voce quasi oopádny concepti, vel quasi sine patre filii. subject to similar prohibitions, but not so stringent. $61. Brother and sister, indeed, are prohibited from intermarriage whether they are born of the same father and mother or have only one parent in common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man's wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage. § 62. A man may marry his brother's daughter, a practice first introduced when Claudius married his brother's daughter Agrippina, but may not marry his sister's daughter, a distinction laid down in imperial constitutions, nor may he marry his father's sister or his mother's sister. § 63. He may not marry one who has been his wife's mother or his son's wife or his wife's daughter or his father's wife. I say, one who has been so allied, because during the continuance of the marriage that produced the alliance there would be another impediment to the union, for a man cannot have two wives nor a woman two husbands. § 64. A man who contracts a nefarious and incestuous marriage is not deemed to have either a wife or children; for the offspring of such a union are deemed to have a mother but no father, and therefore are not subject to paternal power; resembling children born in promiscuous intercourse, who are deemed to have no father, because their true father is uncertain, and who are called bastards either from the Greek word denoting illicit intercourse or because they are fatherless. In any treatise on the law of marriage that we open we shall meet the expression, the marriage contract; and this suggests the inquiry, is marriage a contract, and, if so, to which class of Roman contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman marriage to be referred? Most writers assume that it was a Consensual contract, on the strength of texts like the following: Nuptias non concubitus sed consensus facit, Dig. 35, 1, 15. 'Marriage does not depend on cohabitation, but on consent.' Ortolan, however, remarks that consensual contracts could be formed by absent contractors, Inst. 3, 2, whereas a marriage could not be contracted in the absence of the wife, Paul, 2, 19, 18; and shows that, besides the consent of the parties, delivery of possession of the wife to the husband was required, from which he infers that Roman marriage was not a Consensual but a Real contract. It is true that marriage might be contracted in the absence of the husband: Vir absens uxorem ducere potest, femina absens nubere non potest, Paul, 2, 19, 8; but this was only under certain conditions. Mulierem absenti per literas ejus vel per nuntium posse nubere placet, si in domum ejus deduceretur; eam vero quae abesset ex literis vel nuntio deduci a marito non posse: deductione enim opus esse in mariti non in uxoris domum quasi in domicilium matrimonii, Dig. 23, 21, 5. A man in his absence may marry by letter or message, provided the woman is led to his house: a woman in her absence cannot marry by letter or message, for the leading must be to the husband's house, as the domicile of the married pair.' And precisely the same conditions were sufficient in other cases to constitute delivery of possession. Si venditorem quod emerim deponere in mea domo jusserim, possidere me certum est, quanquam id nemo dum attigerit, Dig. 41, 2, 18, 2. 'If a vendor deposit any article in my house by my order, I have possession of it though I have never touched it.' Consensus, then, in the above-quoted passage, is not opposed to delivery of possession, but to cohabitation, or to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom surrounded the matrimonial union. Real contracts, however, are executory on one side and executed on the other, whereas in the conjugal relation both parties are on the same footing in respect of execution; and we may ask whether marriage is a contract at all; whether it does not rather fall under the opposite category of alienation or conveyance. Instead of finding its analogon in locatio-conductio or societas (consensual contracts) or pignus or commodatum (real contracts), may we not rather, with Savigny, find it in transfer of dominion or other creations of real right, such as adoption, the concession of patria potestas, or emancipation, investiture with independent status? Did not tradition, or delivery of possession, operate to engender, not a personal right, as in real contract, but a real right, as in alienation of ownership, 2 § 65? This seems the truer view, and if we use the expression, marriage contract, we must use the term contract not in a specific sense, as opposed to conveyance, but in a generic sense, as embracing both contract proper and conveyance. Contract proper and conveyance, though generally contrasted in jurisprudence, have much in common. If contract in its narrower sense is defined to be the concurrence of two manifestations of will creating a jus in personam, and conveyance the concurrence of two manifestations of will creating a jus in rem, the concurrence of two manifestations of will creating a jus is an element common to both terms of the comparison, and this common element may be denominated in a generic sense a contract. Contract in the narrower sense may then be distinguished as an obligative contract and conveyance as a translative contract, and the latter head will include the contract of marriage, if we continue to employ this expression. As in respect of property or dominion we find in Roman law the distinction of Quiritary and Bonitary, that is, of civil and gentile, ownership, so in respect of the conjugal relation we find the distinction of civil marriage (connubium, justae nuptiae, justum matrimonium) and gentile marriage (nuptiae, matrimonium), of which the former alone was valid at civil law (connubium est uxoris jure ducendae facultas, Ulpian, 5, 3; connubium is the capacity of marriage valid by civil law') and capable of producing patria potestas and agnatio, though the latter produced legitimate children (justi as opposed to naturales liberi) and cognatio or natural relationship. Capacity of civil marriage (connubium) is (a) absolute and (6) relative. (a) Only citizens have the absolute capacity of civil marriage, and such Latins and aliens as are specially privileged, § 56 slaves are incapable both of civil and gentile marriage. (6) Capacity of civil marriage is, however, always relative to another person as forming the other party to the union. A citizen only has connubium with a citizen or with such Latins and aliens as are specially privileged; and, before the lex Papia Poppoea was passed, a freeborn citizen (ingenuus) had no connubium with a citizen by manumission (libertinus). Lege Papia cavetur omnibus ingenuis praeter senatores eorumque liberos libertinam uxorem habere licere, Dig. 23, 2, 23. The lex Papia permits all freeborn citizens, except senators and their children, to marry freedwomen.' § 58. The prohibition of marriage between collateral relations, originally perhaps extended as far as there were legal names for the relationship, i. e. as far as the sixth degree, for Tacitus mentions that second cousins were once incapable of intermarriage, sobrinarum diu ignorata matrimonia, Ann. 12, 6; the prohibition was subsequently reduced to the fourth degree, i. e. to the intermarriage of first cousins (consobrini), Ulpian, 5, 6; and finally to the third degree; with this restriction, however, that if one of the collaterals was only removed by one degree from the common ancestor (stipes communis), he was regarded as a quasi ascendent (loco parentis) and incapable of intermarriage at any degree: thus, a man could not marry his brother's or sister's granddaughter, though only related in the fourth degree, Cod. 5, 4, 13. Degrees in the direct line were reckoned by counting the generations or births to which a person owed his descent from an ancestor: thus, a man is one degree from his father, two from his grandfather: in the transverse or collateral line, by adding the degrees which separate each collateral from the common stock; thus, a man is two degrees from his sister, three from his niece. § 62. Constantine restored the ancient law and prohibited marriage with a brother's daughter as incestuous, Cod. Theod. 1, 2. § 63. Alliance (affinitas) is the relationship of a person to the kin (cognates) of a spouse. The husband is allied to the kin of the wife, the wife to the kin of the husband; but there is no alliance between the kin of the husband and the kin of the wife. The following are some of the names given to these relationships. In the ascending line the father and mother of the wife or husband are socer and socrus (father-in-law, mother-in-law), and in relation to them the husband of the daughter and wife of the son are gener and nurus (sonin-law, daughter-in-law). In the descending line the children of the spouse are privignus and privigna (step-son, step-daughter), and in relation to them the husband of the mother and the wife of the father are vitricus and noverca (step-father and step-mother). In the collateral line the husband's brother is levir (brother-in-law), the husband's sister is glos (sister-in-law). Intermarriage with allies in the direct line, or their ascendents or descendents, was absolutely prohibited; collateral alliance was no impediment in the time of Gaius, but at a later period marriage with a deceased brother's wife or a deceased wife's sister was forbidden, Cod. 5, 5, 5. DE ERRORIS CAUSAE PROBATIONE. § 65. Aliquando autem evenit, ut liberi qui statim ut nati sunt parentum in potestate non fiant, ii postea tamen redigantur in potestatem. § 66. Itaque si Latinus ex lege Aelia Sentia uxore ducta filium procreaverit, aut Latinum ex Latina, aut civem Romanum ex cive Romana, non habebit eum in potestate: at causa probata civitatem Romanam consequitur cum filio: simul ergo eum in potestate sua habere incipit. § 67. Item si civis Romanus Latinam aut peregrinam uxorem duxerit per ignorantiam, cum eam civem Romanam esse crederet, et filium procreaverit, hic non est in potestate, quia ne quidem civis Romanus est, sed aut Latinus aut peregrinus, id est eius condicionis cuius et mater fuerit, quia non aliter quisquam ad patris condicionem accedit, quam si inter patrem et matrem eius conubium sit: sed ex senatusconsulto permittitur causam erroris probare, et ita uxor quoque et filius ad civitatem Romanam perveniunt, et ex eo tempore incipit filius in potestate patris esse. iuris est, si eam per ignorantiam uxorem duxerit quae dediticiorum numero est, nisi quod uxor non fit civis Romana. Idem § 68. Item si civis Romana per errorem nupta sit peregrino tamquam civi Romano, permittitur ei causam erroris probare, et ita filius quoque et maritus ad civitatem Ro § 65. It sometimes happens that children when first born are not in their father's power, but are subsequently brought into subjection to him. § 66. Thus, under the lex Aelia Sentia a Latin who marries and begets a son of Latin status by a Latin mother, or a citizen of Rome by a Roman mother, is not invested with power over him; but on proof of his above-mentioned statutory title, he becomes a citizen of Rome along with his son, who is henceforth subject to his power. § 67. Again, if a Roman citizen marry a Latin or an alien woman in a mistaken belief that she is a citizen of Rome, the son whom he begets is not in his power, not being born a citizen of Rome, but a Latin or an alien, that is to say, of the same status as his mother, for a child is not born into the condition of his father unless his parents had capacity of civil marriage: but a senatusconsult allows the father to prove a cause of justifiable error, and then the wife and son become citizens of Rome, and the son is thenceforth in the power of the father. The same relief is given when a Roman citizen under a like misconception marries a freed woman having the status of a surrendered foe, except that the wife does not become a citizen of Rome. § 68. Again, a female citizen of Rome who marries an alien in the false belief that he is a Roman citizen is permitted to prove a cause of justifiable error, and thereupon her |