them, in satisfaction of any damage they had occasioned; or he might punish them as a household judge, even capitally. The Twelve Tables ordained that deformed infants should be put to death. Every acquisition of the filius-familias went to the pater-familias, who was sole proprietor of the family goods.

During the Republic this absolute patria potestas was scarcely at all modified (1). But the change in manners so relaxed its rigours, that the pater-familias came at last to be regarded rather as the chief ruler than proprietor of the members of the familia. Under the Emperors, the patria potestas was more and more restricted, both over the person and over the goods of the filius-familias (2). As to the person, the pater-familias had not, latterly, the right of life and death, or of exposing his filius-familias : he could not sell him except at the moment of birth (sanguinolentos), and when compelled by extreme misery (C. iv. 43. 2). If he desired to inflict extraordinary punishment, he had to apply to the magistrate. As to the goods, the patria potestas was restricted by reason of those peculia, over which the filius-familias had various rights (B. 2, t. 9).

As the result of a lawful marriage, the patria potestas extended over all the children of the pater-familias, and his wife, over all the grandchildren and other issue born of a filius-familias, and in lawful wedlock. But a daughter's children were not of her own familia: they were the filii-familias of their father or grandfather, in whose potestas the father was.

The mother never had her children, sprung from a lawful marriage, under her potestas. Hence Ulpian says, that a familia, of which a woman sui juris is head, begins and ends with her: familiæ suæ et caput et finis.

ject to his father. The same happened on a second sale and second enfranchisement. But on a third sale, if the son was enfranchised by the third purchaser, he became sui juris. Hence the Twelve Tables (p. 14): Si pater filium, ter venum dedit, filius a patre liber esto.

This was for the son's benefit. Indeed, though the patria potestas may seem entirely for the paterfamilias' benefit, still the filius-familias derived important benefits, e.g., rights of succession, from it.-Moreover, children sold (mancipati) were not, at least after the Twelve Tables, absolute slaves they were subject to a special power called mancipium. Though the mancipatio of children existed in Gaius' time, it was only part of the form used in the enfranchisement of children from the patria potestas, or in their adoption by third parties. It was not, however, till later that children

were no longer surrendered, as a kind of satisfaction, for damage done by them. A constitution of Diocletian declared that fathers should not sell, give away, or pledge their children (C. iv. t. 43. 1. 2).

(1) Fulvius put his son to death who took part in Catiline's conspiracy (Sall. Cel. Cat. c. 39). Before Fulvius, Cassius had put his son to death, because his eloquence disturbed the Republic (Val. Max. v. 2).

(2) Trajan made a father, who had illtreated his son, enfranchise him (D. 37. t. 12. 1. 5). Adrian condemned a father to deportatio who had slain his incestuous son. Alex. Severus gave the magistrate jurisdiction to determine what punishment should be inflicted by parents. A Constitution of Constantine punished as a parricide a father who had killed his child (C. ix. t. 17. 1).

E

TITLE X.-OF MARRIAGE.

T. 9, § 1. Marriage, nuptiæ justæ or matrimonium justum, generally, is the joining together of a man and woman for the purpose of imparting an absolute unity to their course of life (individuam vitæ consuetudinem continens): lawful (justum) marriage is a marriage contracted according to the Civil Law.

Individuam vitæ consuetudinem implies such unity as results from husband and wife having the same home, and the same social position (1): for the man, by taking a woman to wife, made her his companion, and shared with her his condition and rank; and herein marriage differed from concubinatus, a species of lawful union, in which a man took a woman without intending to elevate her to his own rank (2).

There were important distinctions between justa nuptiæ and concubinage. Justa nuptiæ alone had civil consequences; thus, the husband was called vir, the wife uxor; the children had the status which their father had at the time of their conception, and were of his familia. But concubinage was the lawful commerce of a man and woman, without marriage (licita consuetudo causa non matrimonii): though contracted between Roman citizens, it had no civil consequences. The woman was not uxor: the children followed the mother's status, and were not in their father's potestas, but sui juris. Moreover, they had a known father, and were therefore called naturales, to distinguish them from legitimi, i. e., the issue of justæ nuptiæ, and so members of their father's familia. Again, natural children differed from spurii or vulgo concepti, who had no recognised father, being sprung from an unlawful and transitory union, stuprum.

As in the case of concubinage, so in the case of justæ nuptiæ, no ceremony was required: consent alone was necessary (3). Sometimes there

(1) At Rome there was no community of goods.

(2) Concubinage resembled the Northern custom, marriage by the left hand. Unlike marriage, because it wanted the essential indiv. vitæ, &c., it was still sanctioned and regulated by law, being quite distinct from an unlawful union (stuprum). In concubinage the parties must both be free, and no one could have more than one concubine. It might be dissolved at the will of either party, without any formal divorce, or the act of renunciation (repudium) being sent. Concu. binage was adopted as a means of increasing population. Constantine discouraged it, and declared that a father should leave nothing to his natural children; and that

no persons of rank (illustres, spectabiles, clarissimi) should have concubines. But Justinian allowed it. Leo, the philosopher, first abolished it in the East. In the West, it continued longer, and we find it in the laws of the Lombards and the Francs.

(3) That is, the old confarreatio, or mancipatio, was not necessary; and a marriage, by consent of the parties, and approved by friends and neighbours, was good (C. v. t. 4. 9. 22). But probably (Ortolan, t. 1, p. 195) consent alone did not complete the contract, for this seems to be one of those requiring delivery; the woman must be brought to her husband's housetill then the marriage was only intended; the phrase uxorem ducere shows this. The

was a writing, either as a record of the marriage (nuptiales tabula), or containing the agreement as to the dos (instrumenta dotalia); but this was mere matter of evidence, which might be obtained otherwise, and did not constitute marriage. Hence the question, whether it was a case of lawful marriage or concubinage, depended on this question alone, whether the husband intended to take the woman as his wife or as his concubine: concubinam ex sola animi destinatione æstimari potest.

Sometimes, however, the intention was presumed. Thus, when the woman was free-born and of good reputation, it was presumed that she was uxor, and nothing less than a written declaration to the contrary would rebut this. But if the woman was of bad reputation, or incapable of becoming an uxor, it was presumed that she was intended for a concubine.

Pr. According to the Civil Law, in order to justa nuptiæ, three conditions were essential: (1.) The parties must be (puberes) of full age. (2.) The parties themselves, and certain others, must consent. (3.) The parties must have connubium.

(1.) As to the age of puberty, Justinian fixed it at fourteen for males, and twelve for females. Before puberty, a party could not of himself contract: nor could he perform the marriage duties: hence the necessity for the first condition. Of impotent puberes, all but castrati might

marry.

(2.) Pr. As to the persons who should give consent: a. There were the intended husband and wife. b. There was the ancestor in whose power the future husband and wife were. c. There were those in whose power the children of the proposed marriage might some day be. Thus, suppose son and grandson both in the power of the grandfather, the grandson, though not in the father's power, must get the consent both of the grandfather and of the father; for, on the grandfather's death, the grandson and his issue must come under the power of the father; and no one could become subject to another without his consent. But, in case of a daughter, the father's consent was not necessary, for her issue would be under their own, not her father's power.

According to the old law, therefore, the father's consent was not necessary for children sui juris, e.g., when emancipated, and according to the same law, the mother's consent was never required. For that law looked only to the patria potestas, and did not consider a child's natural duty to its ancestor. But Valentinian and Valens, then Honorius and Theodosius, required women under twenty-five, though emanci

marriage, however, was complete without cohabitation (non concubitus sed consensus facit) (D. 35, t. 1. 15. ; D. 50. t. 17. 30). Marriage by mere consent was probably introduced when forms began to lose their importance in Roman law. One reason for

the disuse of confarreatio-the only mode by which a wife did not come into the manus of her husband-was, because it could not be dissolved except by a tedious ceremony, diffarreatio.

pated, to get their father's consent; and, if he was dead, their mother's, and that of their next of kin (C. v. t. 4. 18. 20).

Pr. It was necessary that this consent should precede (præcedere) the marriage, for it was a condition precedent to it; and as you cannot ratify a nonentity, there could be no ratification here.

Still, the consent need not be expressed. It might be tacit, as when an ancestor knew of a marriage and did not object; at the same time it must be a substantial consent-not given by mistake, or extorted by fraud or violence.

Pr. In some cases, however, the presumption was held sufficient, that consent would have been given by the ancestor had it been in his power. Thus children of a captive, or of one absent above three years, might contract a suitable marriage without consent. In like manner, Hadrian allowed the daughter of a lunatic to marry; but the case of a son, by whose marriage children might be brought into the familia, differed. Nevertheless, on grounds of public convenience, and to facilitate marriage, Justinian laid down certain rules, on complying with which the son of a lunatic might marry without his father's consent (C. v. t. 4. 25). (3.) Connubium is the capacity, which must exist in the future husband and wife to be joined together in marriage. Any citizen of age, who has obtained the consent of those under whose power he now is, or will some day be, has the general capacity to contract marriage, but not with every individual; thus he cannot marry a stranger (peregrina), or one related within the forbidden degrees. But it is the particular capacity to marry the individual with whom we desire to form an union, which is denoted by connubium (1).

Now there are two kinds of relationship, and the term cognatio includes them both. There is (1.) Natural relationship, which is cognatio proper; there is (2.) Civil relationship, or agnatio. The first is the tie of blood between a man and his descendants, or between those sprung from a common stock, cognati; the second is the legal tie between members of the same familia, whilst they are members (agnati, t. 15).

It may be convenient to explain here the expression "line" and "degree of relationship." "Line" then means a series of relations: direct, when they are descended from each other, as father and son; collateral, when they are not descended from each other, but have a common ancestor, as brother and sister. Relations are like persons coming down a flight of steps, each of which is a "degree," occupied by a generation. In the direct"line" there are as many "degrees" as generations. Thus, from grandfather to grandson there are two "degrees." In the collateral

(1) Connubium was only between citizens (G. 1. §§ 55, 56, 57). The Emperor often granted it to a peregrinus or a latinus. After

the title civis was extended to all the subjects of the empire, slaves were the only persons with whom there was no connubium.

"line" each relation is descended from the common ancestor by a particular “line,” which has "degrees" or steps. The sum of the two "lines" shows the distance between the collaterals; thus the uncle in the first, and the nephew in the second degree from the common ancestor are to each other in the third.

§ 1. As to the impediments to connubium and lawful marriage between two relations in the direct line. No two persons related in the direct line, either by blood or by adoption, can intermarry, for they occupy the place of parent and child: the effect of adoption in this case is to create such civil relationship as to prevent the parties marrying, even after it is dissolved. Hence you cannot marry your adopted daughter or grand-daughter even after her emancipation.

§ 2. Consequently a father having his daughter in his potestas could not adopt his son-in-law. For so the wife would become the husband's sister. A father who wishes (velit) to do so, must first emancipate his daughter; for then the husband can enter the familia.

§ 2. Even between two collateral relations, there are some impediments to connubium and lawful marriage, although they are less. numerous than in the direct line. But when the impediment to intermarriage between collaterals is a mere civil relationship, it ceases the moment such relationship is dissolved. Thus, a brother may not marry a sister, but (sed si) if either be merely adopted, they may intermarry on being emancipated.

§§ 3, 4. But two collaterals cannot intermarry if either is in the first degree from the common ancestor, for the person next to such ancestor represents him to all his descendants, and may not marry any of them, quia loco parentis habetur. Thus, you may not marry your brother or sister, or any of their issue (1). But (§ 4) cousins may, because both are two degrees from the common ancestor.

§ 3. Civil relationship, whilst it continues, has the same effect as natural relationship; but observe who are civil relations. I may marry the daughter of my adopted sister, for the family-tie between me and my sister does not extend to her children, for they are in their father's family, not in their mother's. So I may marry the woman adopted by my mother's father (matertera adoptiva), because I, being of my father's family, am unconnected, civilly or naturally, with that woman. But I may not marry my father's sister (amita) even by adoption, she and I being of the same family (§ 5).

Affinitas is the tie between one of a married couple and the relations of the other, or between the relations of one and those of the other.

(1) Claudius, in order to marry bis niece Agrippina, daughter of Germanicus, authorised by Senatus-consultum an uncle to marry his brother's daughter; but this

exception, which never extended to the daughter of a sister, was abolished by Constantine (Cod. Theod. 1).