1Modestinus, Rules, Book I. Marriage is the union of a man and a woman, forming an association during their entire lives, and involving the common enjoyment of divine and human privileges.

2Paulus, On the Edict, Book XXXV. Marriage cannot take place unless all the parties consent, that is to say those who are united, as well as those under whose authority they are.

3The Same, On Sabinus, Book I. If I have a grandson derived from one of my sons, and a granddaughter derived from another, under my control, Pomponius says that my consent will be sufficient to enable marriage to be contracted between them; which is correct.

4Pomponius, On Sabinus, Book III. Where a girl under twelve years of age is married, she will not be a lawful wife until she has reached that age while living with her husband.

5The Same, On Sabinus, Book IV. It is settled that a woman can be married to a man who is absent either by means of a letter, or through a messenger, if she is afterwards conducted to his house. If she remains absent, however, she cannot be married, either by letter or by messenger; for she must be brought, not to her own house, but to that of her husband, since this is, as it were, the domicile of matrimony.

6Ulpianus, On Sabinus, Book XXXV. Finally Cinna says that, where a man marries a woman who is absent and then, returning from a banquet on the other side of the Tiber, loses his life; it is held that his wife should mourn for him.

7Paulus, On the Lex Falcidia. Therefore, it could happen in this instance that a virgin might be entitled to her dowry and an action to recover the same.

8Pomponius, On Sabinus, Book V. A freedman cannot marry either his mother or his sister, who has been liberated from slavery, because the rule forbidding this is founded upon good morals and not upon law.

9Ulpianus, On Sabinus, Book XXVI. Where a grandfather is insane and his grandson wishes to marry, the consent of his father will be absolutely necessary; but if his father should be insane, the consent of his grandfather will be sufficient, if the latter is of sound mind. 1A son can marry if his father is in the hands of the enemy, and does not return within three years.

10Paulus, On the Edict, Book XXXV. It is doubtful what course to pursue where the father is absent, and it is not known where he is, or even whether he is still alive. If three years should elapse from the time when the father’s whereabouts or whether he was living began to be unknown, his children of both sexes will not be prevented from legally contracting marriage.

11Julianus, Digest, Book LXIII. Where the child of a man who is in captivity or who is absent marries before the three years of captivity or absence have elapsed, I think that the marriage will be legally contracted; provided that either the son or the daughter should marry a person whose condition will certainly not be offensive to the father.

12Ulpianus, On Sabinus, Book XXVI. If I have a wife, and, after having been repudiated by me, she marries Seius, whom I subsequently adopt, the marriage is not incestuous. 1A legal marriage cannot be contracted between me and a woman betrothed to my father, although she cannot properly be said to be my stepmother. 2On the other hand, a woman who is betrothed to me cannot marry my father, although she cannot properly be called his daughter-in-law. 3If my wife, after having been divorced, should marry another man, and have a daughter by him, Julianus thinks that the latter is not my stepdaughter, still, I must not marry her. 4I can marry the daughter of my adopted sister, for she is not my relative, as no one becomes an uncle by adoption. Those relationships are only formed by adoption which are legitimate, that is to say, which possess the rights of agnation. On the same principle, I can marry the sister of my adoptive father, if she was not born of the same mother as he.

13The Same, On Sabinus, Book XXXV. Where a patroness is so degraded that she even thinks that marriage with her freedman is honorable, it should not be prohibited by a judge to whom application is made to prevent it.

14Paulus, On the Edict, Book XXXV. Where an adopted son is emancipated, he cannot marry the widow of his adoptive father, because she occupies the position of a stepmother. 1The same rule applies where anyone adopts a son, for he cannot marry his widow, as she occupies the position of a daughter-in-law even after the emancipation of his son. 2Servile relationships must also be taken into consideration under this head; hence a slave who is manumitted cannot marry his mother, and the same rule applies to the case of a sister and her daughter. On the other hand, it must be said that a father cannot marry his daughter, if both of them have been manumitted, even though it is doubtful whether the alleged father is her parent. Wherefore, a natural father cannot legally marry his daughter born out of wedlock, since, in contracting marriage, natural law and modesty must be considered, for it is contrary to modesty for a man to marry his own daughter. 3The same rule that is applicable to servile blood-relationship must also be observed in cases of servile affinity; as, for example, I cannot marry a woman with whom my father lived in concubinage, for she occupies, to some extent, the position of a stepmother; and, on the other hand, a father cannot marry a woman who lived in concubinage with his son, because she occupies, as it were, the position of a daughter-in-law. Neither can anyone marry the mother of a woman with whom he lived in slavery, since she is, so to speak, his mother-in-law; and as servile cognation is recognized, why should not affinity be governed by the same rule? Where any doubt exists, it is always better and more decent to avoid marriages of this kind. 4Now let us see what is the meaning of the terms stepmother, stepdaughter, mother-in-law, and daughter-in-law, in order that we may ascertain whom it is illegal to marry. Certain authorities understand a stepmother to be the wife of the father, a daughter-in-law the wife of the son, and a stepdaughter the child of the wife by a former husband. So far, however, as the present subject is concerned, it is more correct to hold that a man cannot marry the wife of his grandfather, or his great-grandmother, therefore there are two, or even several, stepmothers whom he cannot marry. This is not to be wondered at, for an adopted son cannot marry the widow of his natural, or adoptive father. Where his father has had several wives, he cannot marry any of them. Therefore the term “mother-in-law” not only applies to the mother of my wife, but also to her grandmother, and great-grandmother, and I cannot marry either of them. The term “daughter-in-law” is not only applicable to the wife of a son, but also to the wife of a grandson, and great-grandson, although certain authorities designate these as grand-daughters-in-law. A stepdaughter is understood to be not only the daughter of my wife, but also to refer to her granddaughter and great-granddaughter; and I can marry none of them. Augustus decided that I cannot marry a woman whose mother has been betrothed to me, for she has occupied the position of my mother-in-law.

15Papinianus, Opinions, Book IV. A man cannot marry the former wife of his stepson, nor can a woman marry a man who was formerly the husband of her stepdaughter.

16Paulus, On the Edict, Book XXXV. It is provided by a Rescript of the Divine Marcus that, if the daughter of a Senator should marry a freedman, the marriage will be void; and this was followed by a Decree of the Senate to the same effect. 1A son should consent to the marriage of the grandson, but where the granddaughter is to be married, the consent and authority of the grandfather will be sufficient. 2Insanity prevents the contraction of marriage, because consent is necessary; but it does not annul it after it has been legally contracted.

17Gaius, On the Provincial Edict, Book XI. Where the relationship of brother and sister has been acquired by adoption, it will be an impediment to their marriage while the adoption lasts; therefore I can marry a girl whom my father adopted and afterwards emancipated. We can also be united in matrimony if I have been emancipated, and my father has retained her under his control. 1Hence, a man wishing to adopt his son-in-law was advised to emancipate his daughter; and, in like manner, one who wishes to adopt his daughter-in-law is advised to emancipate his son. 2We also forbid anyone to marry his paternal or maternal aunt, or his paternal or maternal great-aunt; although the former are related to him in the fourth degree. We also forbid a man to marry his paternal aunt and great-aunt even though they are connected with us by adoption.

18Julianus, Digest, Book XVI. Marriage contracted between these persons is not legal, unless the relatives consent to it.

19Marcianus, Institutes, Book XVI. In the Thirty-fifth Section of the Lex Julia, persons who wrongfully prevent their children, who are subject to their authority, to marry, or who refuse to endow them, are compelled by the Proconsuls or Governors of provinces, under a Constitution of the Divine Severus and Antoninus, to marry or endow their said children. They are also held to prevent their marriage where they do not seek to promote it.

20Paulus, On the Rescript of the Divine Severus and Commodus. It must be remembered that it is not one of the functions of a curator to see that his ward is married, or not; because his duties only relate to the transaction of business. This Severus and Antoninus stated in a Rescript in the following words: “It is the duty of a curator to manage the affairs of his ward, but the ward can marry, or not, as she pleases.”

21Terentius Clemens, On the Lex Julia et Papia, Book III. A son under paternal control cannot be forced to marry.

22Celsus, Digest, Book XV. Where a son, being compelled by his father, marries a woman whom he would not have married if he had been left to the exercise of his own free will, the marriage will, nevertheless, legally be contracted; because it was not solemnized against the consent of the parties, and the son is held to have preferred to take this course.

23The Same, Digest, Book XXX. It is provided by the Lex Papia that all freeborn men, except Senators and their children, can marry freedwomen.

24Modestinus, Rules, Book I. Where a man lives with a free woman, it is not considered concubinage but genuine matrimony, if she does not acquire gain by means of her body.

25The Same, Rules, Book II. A son who has been emancipated can marry without the consent of his father, and any son that he may have will be his heir.

26The Same, Opinions, Book V. Modestinus says that women accused of adultery cannot marry during the lifetime of their husbands, even before they have been convicted.

27Ulpianus, On the Lex Julia et Papia, Book III. Where a man of Senatorial rank has as a wife a woman who has been manumitted, although, in the meantime, she may not legally be his wife, still, she occupies such a position that if he should lose his rank she will become his wife.

28Marcianus, Institutes, Book X. A patron cannot marry his freedwoman against her consent.

29Ulpianus, On the Lex Julia et Papia, Book III. It is stated that Ateius Capito, during his consulate, issued a decree of this kind. It must be observed, however, that this rule does not apply where a patron emancipated a female slave in order to marry her.

30Gaius, On the Lex Julia et Papia, Book II. A pretended marriage is of no force or effect.

31Ulpianus, On the Lex Julia et Papia, Book VI. Where a Senator is permitted to marry a freedwoman by the consent of the Emperor, she will be his lawful wife.

32Marcellus, On the Lex Julia et Papia, Book I. It should be noted that where a freedman gives himself to be adopted by a man who is born free, although he obtains the rights of a freeborn person in the adoptive family, being a freedman, still, he will not be permitted to contract marriage with the daughter of a Senator.

33The Same, On the Lex Julia et Papia, Book III. Many authorities hold that when a woman, after separation, returns to her husband, this is the same marriage. I assent to this opinion, provided they are reconciled before a long time has elapsed, and neither of them has married anyone in the meantime, and especially if the husband has not returned the dowry.

34Papinianus, Opinions, Book IV. Where a general commission has been given to a man by someone to seek a husband for his daughter, this is not sufficient ground for the conclusion of a marriage. Therefore it is necessary that the person selected should be introduced to the father, and that he should consent to the marriage, in order for it to be legally contracted. 1Where a man has accused his wife of adultery in accordance with his right as a husband, he is not forbidden, after the annulment of the marriage, to marry again. If, however, he does not accuse his wife as her husband, it will be held that the marriage which has been contracted will remain valid. 2Marriage can be contracted between stepchildren, even though they have a common brother, the issue of the new marriage of their parents. 3Where the daughter of a Senator marries a freedman, this unfortunate act of her father does not render her a wife, for children should not be deprived of their rank on account of an offence of their parent.

35The Same, Opinions, Book VI. A son under paternal control, who is a soldier, cannot contract matrimony without the consent of his father.

36Paulus, Questions, Book V. A guardian or a curator cannot marry a grown woman who is committed to his care, unless she has been betrothed to, or intended for him by her father, or where the marriage takes place in accordance with some condition mentioned in his will.

37The Same, Opinions, Book VII. The freedman of a curator must be prevented from marrying the ward of the latter.

38The Same, Sentences, Book II. While anyone is discharging the duties of an office in a province, he cannot marry a woman who has either been born or resides therein, although he is not forbidden to betroth himself to her; but if, after his term of office has expired, the woman refuses to marry him, she can do so, after having returned any nuptial gifts which she may have received. 1Where anyone discharges the duties of an office, he can marry a woman to whom he has previously been betrothed, if the dowry given is not about to be confiscated. 2He who exercises a public office in a province is not prevented from marrying his daughters there, and bestowing dowries upon them.

39The Same, On Plautius, Book VI. I cannot marry the granddaughter of my sister, because I stand in the relation of a parent to her. 1If anyone should take as a wife a woman whom he is forbidden by good morals to marry, he is said to commit incest.

40Pomponius, On Plautius, Book IV. Aristo gave it as his opinion that a man could not marry the daughter of his stepdaughter, any more than he could his stepdaughter herself.

41Marcellus, Digest, Book XXVI. It is understood that disgrace attaches to those women who live unchastely, and earn money by prostitution, even if they do not do so openly. 1If a woman should live in concubinage with someone besides her patron, I say that she does not possess the virtue of the mother of a family.

42Modestinus, On the Rite of Marriage. In unions of the sexes, it should always be considered not only what is legal, but also what is decent. 1If the daughter, granddaughter, or great-granddaughter of a Senator should marry a freedman, or a man who practices the profession of an actor, or whose father or mother did so, the marriage will be void.

43Ulpianus, On the Lex Julia et Papia, Book I. We hold that a woman openly practices prostitution, not only where she does so in a house of ill-fame, but also if she is accustomed to do this in taverns, or in other places where she manifests no regard for her modesty. 1We understand the word “openly” to mean indiscriminately, that is to say, without choice, and not if she commits adultery or fornication, but where she sustains the role of a prostitute. 2Moreover, where a woman, having accepted money, has intercourse with only one or two persons, she is not considered to have openly prostituted herself. 3Octavenus, however, says very properly that where a woman publicly prostitutes herself without doing so for money, she should be classed as a harlot. 4The law brands with infamy not only a woman who practices prostitution, but also one who has formerly done so, even though she has ceased to act in this manner; for the disgrace is not removed even if the practice is subsequently discontinued. 5A woman is not to be excused who leads a vicious life under the pretext of poverty. 6The occupation of a pander is not less disgraceful than the practice of prostitution. 7We designate those women as procuresses who prostitute other women for money. 8We understand the term “procuress” to mean a woman who lives this kind of a life on account of another. 9Where one woman conducts a tavern, and keeps others in it who prostitute themselves, as many are accustomed to do under the pretext of employing women for the service of the house; it must be said that they are included in the class of procuresses. 10The Senate decreed that it was not proper for a Senator to marry or keep a woman who had been convicted of a criminal offence, the accusation for which could be made by any of the people; unless he was prohibited by law from bringing such an accusation in court. 11Where a woman has been publicly convicted of having made a false accusation, or prevarication, she is not held to have been convicted of a criminal offence. 12Where a woman is caught in adultery, she is considered to have been convicted of a criminal offence. Hence if she is proved to have been guilty of adultery, she will be branded with infamy, not only because she was caught flagrante delicto, but also because she was convicted of a criminal offence. If, however, she was not caught, but was, nevertheless, found guilty, she becomes infamous because she was convicted of a criminal offence; and, indeed, if she was caught but was not convicted, she would still be infamous. I think that even if she should be acquitted after having been caught, she will still remain infamous, because it is certain that she was taken in adultery, and the law renders the act infamous and does not make this dependent upon the judicial decision. 13It is not mentioned here, as in the Lex Julia on adultery, by whom or where the woman must be caught; hence she is considered infamous whether she was caught by her husband or by anyone else. She will also be infamous according to the terms of the law, even if she was not caught in the house of her husband or her father.

44Paulus, On the Lex Julia et Papia, Book I. It is provided by the Lex Julia that: “A Senator, or his son, or his grandson, or his great-grandson by his son, or grandson, shall not knowingly or with malicious intent become betrothed to, or marry a freedwoman, or a woman whose father or mother practices, or has practiced the profession of an actor. Nor shall the daughter of a Senator, or a granddaughter by his son, or a great-granddaughter by his grandson marry a freedman, or a man whose father or mother practices, or has practiced the profession of an actor, whether they do so knowingly, or with malicious intent. Nor can any one of these parties knowingly, or with malicious intent become betrothed to, or marry the daughter of a Senator.” 1Under this head a Senator is forbidden to marry a freedwoman whose father or mother has, at any time, exercised the profession of an actor. A freedman is also forbidden to marry the daughter of a Senator. 2If the grandfather or grandmother of the woman belonged to the theatrical profession, this will not be an obstacle to the marriage. 3No distinction is made whether the father has the daughter under his control or not. But Octavenus says that it must be understood that the father is legitimate, as well as the mother, even if the child is illegitimate. 4Again, it makes no difference whether the father is a natural or an adoptive one. 5Would it be an obstacle if the father had belonged to the theatrical profession before he made the adoption, or if the natural father had been connected with this profession before his daughter was born? Where a man of this degraded rank adopts a child, and afterwards emancipates her, can he not marry her, just as would be the case where a natural father dies? Pomponius very properly thinks that, in this instance, the opinion is contrary to the meaning of the law, and that children of this kind cannot be classed with the others. 6If the father or mother of a freeborn woman, after the marriage of the latter, should begin to exercise the profession of the stage, it would be most unjust for the daughter to be repudiated by her husband, as the marriage was honorably contracted, and children may already have been born. 7It is evident that if the woman herself becomes a member of the theatrical profession, she should be repudiated by her husband. 8Senators cannot marry women whom other freeborn men are forbidden to take as wives.

45Ulpianus, On the Lex Julia et Papia, Book III. In that law which provides that where a freedwoman has been married to her patron, after separation from him she cannot marry another without his consent; we understand the patron to be one who has bought a female slave under the condition of manumitting her (as is stated in the Rescript of our Emperor and his father), because, after having been manumitted, she becomes the freedwoman of the purchaser. 1This rule does not apply to anyone who has sworn that he is the patron of the woman. 2Nor should he be considered her patron who did not purchase the woman with his own money. 3It is clear that we must not doubt that a son under paternal control, who is a soldier, acquires this right if he manumits a female slave by means of his castrense peculium; for he becomes her patron in accordance with the Imperial Constitutions, and this privilege does not belong to his father. 4This section of the law has reference only to a freedwoman who is married, and does not apply to one who is betrothed; hence, if a freedwoman, who has been betrothed, notifies her patron of her repudiation of the contract, she can contract matrimony with another, even if her patron should be unwilling. 5The law says in the next place: “If her patron should be unwilling,” and we should understand the term “unwilling” to refer to a party who consents to a divorce, and therefore she who is divorced from an insane husband, is not exempt from the consequences of this law; nor where she does so while the latter is ignorant of the fact, for her patron is more properly said to be unwilling than one who dissents. 6Where a patron is captured by enemies, I apprehend that she can marry just as would be the case if her patron was dead. Those who adopt the opinion of Julianus hold that she could not contract marriage, for he thinks that the marriage of a freedwoman lasts even during the captivity of her patron, on account of the respect which she owes him. It is evident, however, that if her patron should be reduced to any other kind of servitude, the marriage would unquestionably be dissolved.

46Gaius, On the Lex Julia et Papia, Book VIII. Can it be doubted whether this law will apply where a patron marries a freedwoman in whom another party jointly has rights? Javolenus denies that it does apply, because she is not properly held to be the freedwoman of one man who also is that of another. On the contrary, others hold that it cannot be denied that she is the freedwoman of one man, because she is also the freedwoman of another; and this opinion the majority of jurists have approved as correct.

47Paulus, On the Lex Julia et Papia, Book II. The daughter of a Senator who has lived in prostitution, or has exercised the calling of an actress, or has been convicted of a criminal offence, can marry a freedman with impunity; for she who has been guilty of such depravity is no longer worthy of honor.

48Terentius Clemens, On the Lex Julia et Papia, Book VIII. The same legal rights are accorded to the son of a patron, in the marriage of a freedwoman belonging to his father, as are granted to the patron himself. This rule applies where the son of one patron, during the lifetime of another, marries the freedwoman of both. 1It is settled that where a patron marries his freedwoman who has disgraced herself, he will not be entitled to the advantages conferred by this law, because he married her in violation of its provisions. 2Where one son marries a freedwoman who has been allotted by will to another, the former will not be entitled to the same rights as a patron. And, in fact, he will have no control over her, because the Senate transferred all the rights belonging to a patron to him for whom his father intended her.

49Marcellus, On the Lex Julia et Papia, Book III. It should be observed that men of inferior station can marry women with whom others of higher rank are forbidden by law to contract matrimony, on account of their superior dignity. On the other hand, men of exalted rank cannot take as wives women whom it is not lawful for those who are of inferior station to marry.

50The Same, On the Lex Julia et Papia, Book III. It is said to have been recently decided that where a man marries his freedwoman whom he manumitted in compliance with the terms of a trust, she can contract matrimony with another without his consent; and I think this is correct, because he should not enjoy the privilege of a patron who was obliged to manumit the woman and did not do so voluntarily, as he rather gave her the freedom to which she was entitled, than conferred any benefit upon her.

51Licinius Rufinus, Rules, Book I. When a female slave has been manumitted for the purpose of matrimony, she cannot marry anyone else than the party by whom she was set free, unless her patron renounces the right of marriage with her. 1Where, however, a son under paternal control manumits a female slave by order of his father, for the purpose of matrimony, Julianus thinks that she is in the same position as if she had been manumitted by the father, and therefore that he can marry her.

52Paulus, On Sabinus, Book VI. Incestuous marriages confer no right of dowry, and therefore the husband can be deprived of everything which he receives, even though it comes under the head of profits.

53Gaius, On the Provincial Edict, Book XI. Marriage cannot take place between parties who stand in the relationship of parents and children, or in the next degree, or in any more distant degrees, ad infinitum.

54Scævola, Opinions, Book I. It makes no difference whether the relationship is derived from lawful marriage, or not; for a man is forbidden to marry his illegitimate sister.

55Gaius, On the Provincial Edict, Book XI. It is also considered abominable to marry an adopted daughter, or granddaughter, and this rule of law is of such force that it still remains applicable even where the adoption has been dissolved by emancipation. 1I cannot marry the mother of my adoptive father, nor his maternal aunt, nor his granddaughter the issue of his son, as long as I remain in the family. After I have been emancipated, however, there is no doubt that nothing will prevent me from marrying any one of them, because I shall not be considered as related to them after emancipation.

56Ulpianus, Disputations, Book III. Where a man keeps the daughter of his sister as a concubine, even though she be a freedwoman, he is guilty of incest.

57Marcianus, Institutes, Book II. Anyone who administers an office in a province cannot consent to the marriage of his son in said province.

57aMarcianus says in a note, in the Second Book on Adultery by Papinianus, that the Divine Marcus and Lucius, Emperors, stated in a Rescript addressed to Flavia Turtulla, by means of Mensor, a freedman: “We are induced, by the length of time during which you, being ignorant of the law, have lived in matrimony with your uncle, and also because you have been married with the consent of your grandmother, as well as on account of your numerous offspring, to decide, taking all these circumstances into account, that the legal status of your children, the issue of a marriage contracted forty years ago, shall be confirmed, and that they shall, therefore, be considered legitimate.”

58Marcianus, Rules, Book IV. It is stated in a Rescript by the Divine Pius that, if a freedwoman, representing herself to be freeborn, should deceive a Senator and marry him, an action should be granted against her, just as in the case of the Prætorian Edict, for the reason that she can derive no advantage from her dowry, as it is void.

59Paulus, Concerning the Assignment of Freedmen. By the Decree of the Senate, in which it is provided that a guardian cannot either give his ward in marriage to his son, or marry her himself, his grandson also is meant.

60The Same, On the Address of the Divine Antoninus and Commodus. Where anyone is not actually a guardian, but the responsibilities of guardianship, nevertheless, attach to him, is he included in the terms of the Address; as, for instance, where his female ward is captured by the enemy, or where he withdraws from the guardianship by means of false allegations, so that he still remains subject to the responsibilities of the trust under the Sacred Constitutions? It must be said that these instances also come under the Decree of the Senate; for it has been established that liability of this kind existed in a case involving three guardianships. 1Where, however, anyone is charged with responsibility for the person of another, let us see whether this may not be beyond the scope of the Decree of the Senate; for example, if a magistrate incurs responsibility in case of guardianship, or a party becomes surety for a guardian or a curator; because under such circumstances, these things will not be considered to apply to a third guardianship, and it must be approved in consequence. 2But what if an honorary guardian is appointed, as such a guardianship is not included among the three, will this same question arise? Reason indicates the contrary, because it is stated that an honorary guardian must assume the responsibility if he suffers the guardianship to be improperly administered. 3There is no doubt that a party who, after having been appointed guardian, does not attend to the administration of the trust, comes within the scope of the Address, because he is liable under the Sacred Constitutions just as if he had administered it. 4But what if the guardian desired to be excused for some reason, and could not produce any proof at the time, so that the investigation of his excuse was deferred; and meanwhile his female ward should grow up, would the Decree of the Senate be applicable to him? The question is dependent on whether, after the ward had arrived at puberty, and the guardianship was at an end, his excuse could be accepted. For if it was accepted, and he should be discharged, he can marry her with impunity; but if it ought not to be accepted after his trust is terminated, he cannot legally marry her. Papinianus says in the Fifth Book of Opinions that where the office of a guardian is terminated, his excuse must not be accepted; and therefore he is responsible for the time which has elapsed. This opinion, however, is by no means satisfactory to me, for it is unjust for the guardian not to be excused, or for his marriage to be prevented where his excuse has been accepted, on account of delay which did not take place through fraud, but from necessity. 5Although it is provided by the terms of the Address that a guardian cannot marry his ward, it must still be understood that he cannot even be betrothed to her; for she, generally speaking, cannot be betrothed to a person to whom she cannot be married, since she who can be married can be legally betrothed. 6But what if the adopted son of a guardian should illegally marry the ward, and afterwards be emancipated? It must be believed that the Senate did not have reference to the adoption of children who had been emancipated, because, after emancipation, the adoptive family is left entirely out of consideration. 7The natural children of a guardian, even though they may have been given in adoption, are included in the Decree of the Senate. 8But what if a guardian, after having been appointed, should appeal, and his heir is subsequently defeated, must he be responsible during the time which has elapsed? And if the heir is the son of the guardian, and should lose his case, will he come within the scope of the Address? It follows that he would, since he has an account to render.

61Papinianus, Questions, Book LII. Where a dowry is confiscated on account of an unlawful marriage, the husband must pay all that he would be compelled to do, in an action on dowry, with the exception of the necessary expenses which usually diminish the dowry by operation of law.

62The Same, Opinions, Book IV. Although the father was willing that the marriage of their daughter should be left entirely to the judgment of the mother, she will not be permitted to select the guardian; for the father is not presumed to have the appointment of a guardian in mind; since he especially deferred to the wishes of the mother in order to prevent her giving the daughter in marriage. 1There is impropriety in a woman marrying the freedman of her husband and patron. 2Where a guardian renders his accounts to a curator, he cannot marry his ward before the time appointed by law; not even if, in the meanwhile, she has become a mother through having contracted another marriage.

63The Same, Definitions, Book I. Where the prefect of a cohort or of cavalry, or a tribune, marries a woman of the province in which he is stationed, this being prohibited by law, the marriage will be void. This case is similar to that of a ward, as the marriage is forbidden on account of the authority exercised. But is there room for doubt that where a virgin marries, she can be deprived of what was left to her by will? As in the case of a ward married to her guardian, the wife can acquire everything that is bequeathed to her; still, any money which has been left by way of dowry must be given up to the heir of the woman.

64Callistratus, Questions, Book II. The Senate decreed that a freedman, who was also the guardian of his patron’s daughter, should be banished because she married him, or his son. 1I think that the foreign heir of a guardian should be included in the terms of the Decree of the Senate by which guardians and their sons are forbidden to marry their female wards; since marriages of this kind are prohibited to prevent wards from being cheated by those who are compelled to account to them for the administration of their guardianship. 2A guardian is not forbidden to give his daughter in marriage to his ward.

65Paulus, Opinions, Book VII. Persons who administer public offices in their native provinces are not held to violate the law by marrying in said provinces; and this is also provided by certain Imperial Decrees. 1Paulus says in the same place: “I am of the opinion that, even though a marriage is contracted in a province contrary to law, still, after the term of office has expired, if the parties continue to be of the same mind, the marriage will become lawful, and therefore any children born subsequently will be legitimate, as in the case of a legal marriage.”

66The Same, Sentences, Book II. Where a guardian or a curator marries his ward before she has reached the age of twenty-six (if she has not been betrothed by her father, or allotted by him to anyone in his will), or if he gives her in marriage to his son; both parties will become infamous on this account, and shall be arbitrarily punished, depending upon the rank of the ward. It makes no difference, in this case, whether the son is his own master, or is under the control of his father. 1It is very improper for the freedman of a curator to marry a ward of his patron who is administering the affairs of the curatorship.

67Tryphoninus, Disputations, Book IX. The son of a guardian is forbidden to marry his ward, while his father is compelled to render an account of the guardianship; whether he does so during the lifetime of the guardian, or after his death. I do not think that it makes any difference whether the son becomes his heir; or whether he rejects the estate of his father; or whether he does not become his heir because he was disinherited; or, having been emancipated, he was passed over in the will; for it might be compelled to surrender property belonging to the guardianship which has been fraudulently given to him by his father. 1There is one point with reference to which doubt may arise; for instance, where a grandfather is administering the guardianship of his granddaughter born to an emancipated son, can he give her in marriage to a grandson by another son, whether he is emancipated or still remains under his control, as his affection for both of them will remove any suspicion of fraud? Although the Decree of the Senate, in its strict interpretation, applies to all kinds of guardians, still, in consideration of the great affection entertained by a grandfather, a marriage of this kind should be permitted. 2Where a son under paternal control is the guardian or curator of a girl, I think that there is still more reason that she should not be allowed to marry his father. Should she be allowed to marry his brother, who is under the control of the same father? 3Let us see if the son of Titius should marry a girl who was your ward, and you then adopt Titius, or his son, whether the marriage will be annulled, as is settled in the case of an adopted son-in-law, or whether the adoption will constitute an impediment to the marriage. The latter is the better opinion, even if the curator, while he is administering his office, should adopt the husband of the girl whose curator he is; for, as soon as the guardianship is terminated, and the girl is married to someone else, I think that, in order to prevent the adoption of her husband, it would be necessary to show that it was contrived to prevent the rendering an account of the guardianship, which the Address of the Divine Marcus included as a cause for the prevention of marriages of this description. 4Where a curator is appointed for the property of an unborn child, he will be subject to the prohibition of this Decree of the Senate, for he also must render an account. The time consumed in the administration of a curatorship should not be considered by us, because, whether it be long or short, the time required to carry out such a trust by the person charged with its performance is of no consequence. 5While Titius was administering the guardianship of a female ward, or as her curator was transacting her business, she died, and left a daughter as her heir, before an account had been rendered. The question arises whether Titius could give her in marriage to his son. I said that he could do so, because the account due to the estate was merely a simple debt; otherwise, every debtor who was liable to him for any reason whatsoever would be forbidden to marry her himself, or give her in marriage to his son. 6Where a guardian causes his ward to reject the estate of her father, he should give her a good reason for doing so, for he might happen to have judgment rendered against him on this ground if he acted without proper deliberation; even if he did not avail himself of the aid of the Prætor, after taking proper advice, because the father of the girl died insolvent. Nevertheless, as it is necessary for this to be proved in court, the marriage will be hindered; for he who has administered a guardianship advantageously and with fidelity, will still be prohibited from contracting such a marriage.

68Paulus, On the Turpilian Decree of the Senate. Where any man marries a female relative, either in the ascending or descending line, he commits incest according to the Law of Nations. He who marries a female relative in the collateral line, (where this is expressly forbidden), or some woman is connected with him by affinity, and he does this publicly, he will incur a lighter penalty, but if he commits such an act clandestinely, he will incur a more severe one. The reason for this difference with reference to marriage improperly contracted with a relative in the collateral line is, that those who publicly commit the offence are not subjected to a more grievous penalty because they are considered to be ignorant, but those who commit it secretly are punished severely as being contumacious.