De ritu nuptiarum
(Concerning the ceremony of marriage.)
1 Modestinus libro primo regularum. Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuris communicatio.
1 Modestinus, 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.
2 Paulus libro trigesimo quinto ad edictum. Nuptiae consistere non possunt nisi consentiant omnes, id est qui coeunt quorumque in potestate sunt.
2 Paulus, 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.
3 Idem libro primo ad Sabinum. Si nepotem ex filio et neptem ex altero filio in potestate habeam, nuptias inter eos me solo auctore contrahi posse Pomponius scribit et verum est.
3 The 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.
4 Pomponius libro tertio ad Sabinum. Minorem annis duodecim nuptam tunc legitimam uxorem fore, cum apud virum explesset duodecim annos.
4 Pomponius, 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.
5 Idem libro quarto ad Sabinum. Mulierem absenti per litteras eius vel per nuntium posse nubere placet, si in domum eius deduceretur: eam vero quae abesset ex litteris vel nuntio suo duci a marito non posse: deductione enim opus esse in mariti, non in uxoris domum, quasi in domicilium matrimonii.
5 The 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.
6 Ulpianus libro trigesimo quinto ad Sabinum. Denique Cinna scribit: eum, qui absentem accepit uxorem, deinde rediens a cena iuxta Tiberim perisset, ab uxore lugendum responsum est.
6 Ulpianus, 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.
7 Paulus libro singulari ad legem Falcidiam. Ideoque potest fieri, ut in hoc casu aliqua virgo et dotem et de dote habeat actionem.
7 Paulus, 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.
8 Pomponius libro quinto ad Sabinum. Libertinus libertinam matrem aut sororem uxorem ducere non potest, quia hoc ius moribus, non legibus introductum est.
8 Pomponius, 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.
9 Ulpianus libro vicesimo sexto ad Sabinum. Si nepos uxorem velit ducere avo furente, omnimodo patris auctoritas erit necessaria: sed si pater furit, avus sapiat, sufficit avi voluntas. 1Is cuius pater ab hostibus captus est, si non intra triennium revertatur, uxorem ducere potest.
9 Ulpianus, 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.
10 Paulus libro trigesimo quinto ad edictum. Si ita pater absit, ut ignoretur ubi sit et an sit, quid faciendum est, merito dubitatur. et si triennium effluxerit, postquam apertissime fuerit pater ignotus, ubi degit et an superstes sit, non prohibentur liberi eius utriusque sexus matrimonium vel nuptias legitimas contrahere.
10 Paulus, 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.
11 Iulianus libro sexagesimo secundo digestorum. Si filius eius qui apud hostes est vel absit ante triennium captivitatis vel absentiae patris uxorem duxit vel si filia nupserit, puto recte matrimonium vel nuptias contrahi, dummodo eam filius ducat uxorem vel filia tali nubat, cuius condicionem certum sit patrem non repudiaturum.
11 Julianus, 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.
12 Ulpianus libro vicesimo sexto ad Sabinum. Si qua mihi uxor fuit, deinde a me repudiata nupsit Seio, quem ego postea adrogavi, non sunt nuptiae incestae. 1Inter me et sponsam patris mei nuptiae contrahi non possunt: quamquam noverca mea non proprie dicatur. 2Sed et per contrarium sponsa mea patri meo nubere non poterit, quamvis nurus non proprie dicatur. 3Si uxor mea post divortium alii nupserit et filiam susceperit, putat Iulianus hanc quidem privignam non esse, verum nuptiis eius abstinendum. 4Adoptivae sororis filiam possum uxorem ducere: cognata enim mea non est filia eius, quia avunculus nemo fit per adoptionem et eae demum cognationes contrahuntur in adoptionibus, quae legitimae essent, id est quae adgnatorum ius haberent. pari ratione et sororem patris mei adoptivi possum ducere, si non fuit eodem patre nata.
12 Ulpianus, 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.
13 Idem libro trigesimo quarto ad Sabinum. Si patrona tam ignobilis sit, ut ei honestae sint vel saltem liberti sui nuptiae, officio iudicis super hoc cognoscentis hae prohiberi non debent.
13 The 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.
14 Paulus libro trigesimo quinto ad edictum. Adoptivus filius si emancipetur, eam quae patris adoptivi uxor fuit ducere non potest, quia novercae locum habet. 1Item si quis filium adoptaverit, uxorem eiusdem quae nurus loco est ne quidem post emancipationem filii ducere poterit, quoniam aliquando nurus ei fuit. 2Serviles quoque cognationes in hoc iure observandae sunt. igitur suam matrem manumissus non ducet uxorem: tantundem iuris est et in sorore et sororis filia. idem e contrario dicendum est, ut pater filiam non possit ducere, si ex servitute manumissi sint, etsi dubitetur patrem eum esse. unde nec volgo quaesitam filiam pater naturalis potest uxorem ducere, quoniam in contrahendis matrimoniis naturale ius et pudor inspiciendus est: contra pudorem est autem filiam uxorem suam ducere. 3Idem tamen, quod in servilibus cognationibus constitutum est, etiam in servilibus adfinitatibus servandum est, veluti ut eam, quae in contubernio patris fuerit, quasi novercam non possim ducere, et contra eam, quae in contubernio filii fuerit, patrem quasi nurum non ducere: aeque nec matrem eius, quam quis in servitute uxorem habuit, quasi socrum. cum enim cognatio servilis intellegitur, quare non et adfinitas intellegatur? sed in re dubia certius et modestius est huiusmodi nuptiis abstinere. 4Nunc videamus, quomodo noverca et privigna et socrus et nurus intellegantur, ut sciamus, quas non liceat ducere. quidam novercam per se patris uxorem et nurum filii uxorem et privignam uxoris ex alio marito filiam intellegunt: sed quod ad hanc causam verius est nec avi uxorem nec proavi duci posse. duas ergo vel plures novercas ducere non poterit: non mirum, nam et is qui adoptivus est nec naturalis patris nec adoptivi uxorem ducere potest: sed et si plures uxores pater habuerit, nullam earum ducere possum. itaque socrus appellatione non tantum uxoris meae mater, sed et avia et proavia intellegitur, ut nullam earum ducere possim. nurus quoque appellatione non tantum filii uxor, sed et nepotis et pronepotis continetur, licet quidam has pronurus appellant. privigna quoque non solum ea mihi intellegitur quae uxoris meae filia est, sed et neptis et proneptis, ut nullam earum ducere possim. item eius matrem, quam sponsam habui, non posse me uxorem ducere Augustus interpretatus est: fuisse enim eam socrum.
14 Paulus, 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.
15 Papinianus libro quarto responsorum. Uxorem quondam privigni coniungi matrimonio vitrici non oportet nec in matrimonium convenire novercam eius qui privignae maritus fuit.
15 Papinianus, 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.
16 Paulus libro trigesimo quinto ad edictum. Oratione divi Marci cavetur, ut, si senatoris filia libertino nupsisset, nec nuptiae essent: quam et senatus consultum secutum est. 1Nepote uxorem ducente et filius consentire debet: neptis vero si nubat, voluntas et auctoritas avi sufficiet. 2Furor contrahi matrimonium non sinit, quia consensu opus est, sed recte contractum non impedit.
16 Paulus, 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.
17 Gaius libro undecimo ad edictum provinciale. Per adoptionem quaesita fraternitas eousque impedit nuptias, donec manet adoptio: ideoque eam, quam pater meus adoptavit et emancipavit, potero uxorem ducere. aeque et si me emancipato illam in potestate retinuerit, poterimus iungi matrimonio. 1Itaque volenti generum adoptare suadetur, ut filiam [ed. maior emanciparet] <ed. minor emancipet>: similiter suadetur ei, qui nurum velit adoptare, ut emancipet filium. 2Amitam quoque et materteram, item magnam quoque amitam et materteram magnam prohibemur uxorem ducere, quamvis magna amita et matertera quarto gradu sint. utique autem amitam et amitam magnam prohibemur uxorem ducere, etsi per adoptionem nobis coniunctae sint.
17 Gaius, 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.
18 Iulianus libro sexto decimo digestorum. Nuptiae inter easdem personas nisi volentibus parentibus renovatae iustae non habentur.
18 Julianus, Digest, Book XVI. Marriage contracted between these persons is not legal, unless the relatives consent to it.
19 Marcianus libro sexto decimo institutionum. Capite trigesimo quinto legis Iuliae qui liberos quos habent in potestate iniuria prohibuerint ducere uxores vel nubere, vel qui dotem dare non volunt ex constitutione divorum Severi et Antonini, per proconsules praesidesque provinciarum coguntur in matrimonium collocare et dotare. prohibere autem videtur et qui condicionem non quaerit.
19 Marcianus, 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.
20 Paulus libro singulari ad orationem divi Severi et Commodi. Sciendum est ad officium curatoris non pertinere, nubat pupilla an non, quia officium eius in administratione negotiorum constat: et ita Severus et Antoninus rescripserunt in haec verba: ‘Ad officium curatoris administratio pupillae pertinet: nubere autem pupilla suo arbitrio potest’.
20 Paulus, 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.”
21 Terentius Clemens libro tertio ad legem Iuliam et Papiam. Non cogitur filius familias uxorem ducere.
21 Terentius Clemens, On the Lex Julia et Papia, Book III. A son under paternal control cannot be forced to marry.
22 Celsus libro quinto decimo digestorum. Si patre cogente ducit uxorem, quam non duceret, si sui arbitrii esset, contraxit tamen matrimonium, quod inter invitos non contrahitur: maluisse hoc videtur.
22 Celsus, 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.
23 Idem libro trigensimo digestorum. Lege Papia cavetur omnibus ingenuis praeter senatores eorumque liberos libertinam uxorem habere licere.
23 The Same, Digest, Book XXX. It is provided by the Lex Papia that all freeborn men, except Senators and their children, can marry freedwomen.
24 Modestinus libro primo regularum. In liberae mulieris consuetudine non concubinatus, sed nuptiae intellegendae sunt, si non corpore quaestum fecerit.
24 Modestinus, 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.
25 Idem libro secundo regularum. Filius emancipatus etiam sine consensu patris uxorem ducere potest et susceptus filius ei heres erit.
25 The 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.
26 Idem libro quinto responsorum. Respondit reas adulterii factas nec ante damnationem vidente marito uxores duci posse.
26 The 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.
27 Ulpianus libro tertio ad legem Iuliam et Papiam. Si quis in senatorio ordine agens libertinam habuerit uxorem, quamvis interim uxor non sit, attamen in ea condicione est, ut, si amiserit dignitatem, uxor esse incipiat.
27 Ulpianus, 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.
28 Marcianus libro decimo institutionum. Invitam libertam uxorem ducere patronus non potest:
28 Marcianus, Institutes, Book X. A patron cannot marry his freedwoman against her consent.
29 Ulpianus libro tertio ad legem Iuliam et Papiam. quod et Ateius Capito consulatu suo fertur decrevisse. hoc tamen ita observandum est, nisi patronus ideo eam manumisit, ut uxorem eam ducat.
29 Ulpianus, 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.
30 Gaius libro secundo ad legem Iuliam et Papiam. Simulatae nuptiae nullius momenti sunt.
30 Gaius, On the Lex Julia et Papia, Book II. A pretended marriage is of no force or effect.
31 Ulpianus libro sexto ad legem Iuliam et Papiam. Si senatori indulgentia principis fuerit permissum libertinam iustam uxorem habere, potest iusta uxor esse.
31 Ulpianus, 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.
32 Marcellus libro primo ad legem Iuliam et Papiam. Sciendum est libertinum, qui se ingenuo dedit adrogandum, quamvis in eius familia ingenui iura sit consecutus, ut libertinum tamen a senatoriis nuptiis repellendum esse.
32 Marcellus, 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.
33 Idem libro tertio ad legem Iuliam et Papiam. Plerique opinantur, cum eadem mulier ad eundem virum revertatur, id matrimonium idem esse: quibus adsentior, si non multo tempore interposito reconciliati fuerint nec inter moras aut illa alii nupserit aut hic aliam duxerit, maxime si nec dotem vir reddiderit.
33 The 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.
34 Papinianus libro quarto responsorum. Generali mandato quaerendi mariti filiae familias non fieri nuptias rationis est: itaque personam eius patri demonstrari, qui matrimonio consenserit, ut nuptiae contrahantur, necesse est. 1Ream adulterii, quam vir iure mariti postulavit, non prohibetur post abolitionem uxorem denuo ducere: sed et si non iure mariti ream postulavit, iure contractum matrimonium videbitur. 2Inter privignos contrahi nuptiae possunt, etsi fratrem communem ex novo parentium matrimonio susceptum habeant. 3Filiam senatoris nuptias libertini secutam patris casus non faciat uxorem: nam quaesita dignitas liberis propter crimen patris auferenda non est.
34 Papinianus, 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.
35 Idem libro sexto responsorum. Filius familias miles matrimonium sine patris voluntate non contrahit.
35 The Same, Opinions, Book VI. A son under paternal control, who is a soldier, cannot contract matrimony without the consent of his father.
36 Paulus libro quinto quaestionum. Tutor vel curator adultam uxorem ducere non potest, nisi a patre desponsa destinatave testamentove nominata condicione nuptiis secuta fuerit.
36 Paulus, 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.
37 Idem libro septimo responsorum. Libertum curatoris puellae prohiberi oportet uxorem eandem ducere.
37 The Same, Opinions, Book VII. The freedman of a curator must be prevented from marrying the ward of the latter.
38 Idem libro secundo sententiarum. Si quis officium in aliqua provincia administrat, inde oriundam vel ibi domicilium habentem uxorem ducere non potest, quamvis sponsare non prohibeatur, ita scilicet, ut, si post officium depositum noluerit mulier nuptias contrahere, [ed. maior liceat] <ed. minor libeat> ei hoc facere arris tantummodo redditis quas acceperat. 1Veterem sponsam in provincia, qua quis administrat, uxorem ducere potest et dos data non fit caduca. 2Qui in provincia aliquid administrat, in ea provincia filias suas in matrimonium collocare et dotem constituere non prohibetur.
38 The 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.
39 Paulus libro sexto ad Plautium. Sororis proneptem non possum ducere uxorem, quoniam parentis loco ei sum. 1Si quis ex his, quas moribus prohibemur uxores ducere, duxerit, incestum dicitur committere.
40 Pomponius libro quarto ex Plautio. Aristo respondit privignae filiam non magis uxorem duci posse quam ipsam privignam.
40 Pomponius, 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.
41 Marcellus libro vicesimo sexto digestorum. Probrum intellegitur etiam in his mulieribus esse, quae turpiter viverent volgoque quaestum facerent, etiamsi non palam. 1Et si qua se in concubinatu alterius quam patroni tradidisset, matris familias honestatem non habuisse dico.
41 Marcellus, 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.
42 Modestinus libro singulari de ritu nuptiarum. Semper in coniunctionibus non solum quid liceat considerandum est, sed et quid honestum sit. 1Si senatoris filia neptis proneptis libertino vel qui artem ludicram exercuit cuiusve pater materve id fecerit, nupserit, nuptiae non erunt.
42 Modestinus, 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.
43 Ulpianus libro primo ad legem Iuliam et Papiam. Palam quaestum facere dicemus non tantum eam, quae in lupanario se prostituit, verum etiam si qua (ut adsolet) in taberna cauponia vel qua alia pudori suo non parcit. 1Palam autem sic accipimus passim, hoc est sine dilectu: non si qua adulteris vel stupratoribus se committit, sed quae vicem prostitutae sustinet. 2Item quod cum uno et altero pecunia accepta commiscuit, non videtur palam corpore quaestum facere. 3Octavenus tamen rectissime ait etiam eam, quae sine quaestu palam se prostituerit, debuisse his connumerari. 4Non solum autem ea quae facit, verum ea quoque quae fecit, etsi facere desiit, lege notatur: neque enim aboletur turpitudo, quae postea intermissa est. 5Non est ignoscendum ei, quae obtentu paupertatis turpissimam vitam egit. 6Lenocinium facere non minus est quam corpore quaestum exercere. 7Lenas autem eas dicimus, quae mulieres quaestuarias prostituunt. 8Lenam accipiemus et eam, quae alterius nomine hoc vitae genus exercet. 9Si qua cauponam exercens in ea corpora quaestuaria habeat (ut multae adsolent sub praetextu instrumenti cauponii prostitutas mulieres habere), dicendum hanc quoque lenae appellatione contineri. 10Senatus censuit non conveniens esse ulli senatori uxorem ducere aut retinere damnatam publico iudicio, quo iudicio cuilibet ex populo experiri licet, nisi si cui lege aliqua accusandi publico iudicio non est potestas. 11Si qua calumniae iudicio damnata sit ex causa publici iudicii et quae praevaricationis damnata est, publico iudicio damnata esse non videtur. 12Quae in adulterio deprehensa est, quasi publico iudicio damnata est. proinde si adulterii condemnata esse proponatur, non tantum quia deprehensa est erit notata, sed quia et publico iudicio damnata est. quod si non sit deprehensa, damnata autem, idcirco notetur, quia publico iudicio damnata est, at si deprehensa quidem sit, damnata autem non sit, notata erit? ego puto, etsi absoluta sit post deprehensionem, adhuc tamen notam illi obesse debere, quia verum est eam in adulterio deprehensam, quia factum lex, non sententiam notaverit. 13Non adicitur hic ut in lege Iulia de adulteriis a quo vel ubi deprehensam: proinde sive maritus sive quis alius deprehendisse proponatur, videtur notata: sed et si non in domo mariti vel patris sui deprehensa sit, erit notata secundum verba legis.
43 Ulpianus, 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.
44 Paulus libro primo ad legem Iuliam et Papiam. Lege Iulia ita cavetur: ‘Qui senator est quive filius neposve ex filio proneposve ex filio nato cuius eorum est erit, ne quis eorum sponsam uxoremve sciens dolo malo habeto libertinam aut eam, quae ipsa cuiusve pater materve artem ludicram facit fecerit. neve senatoris filia neptisve ex filio proneptisve ex nepote filio nato nata libertino eive qui ipse cuiusve pater materve artem ludicram facit fecerit, sponsa nuptave sciens dolo malo esto neve quis eorum dolo malo sciens sponsam uxoremve eam habeto’. 1Hoc capite prohibetur senator libertinam ducere eamve, cuius pater materve artem ludicram fecerit: item libertinus senatoris filiam ducere. 2Non obest avum et aviam artem ludicram fecisse. 3Nec distinguitur, pater in potestate habeat filiam nec ne: tamen iustam patrem intellegendum Octavenus ait, matrem etiam si volgo conceperit. 4Item nihil refert, naturalis sit pater an adoptivus. 5An et is noceat, qui antequam adoptaret artem ludicram fecerit? atque si naturalis pater antequam filia nasceretur fecerit? et si huius notae homo adoptaverit, deinde emancipaverit, an non possit duci? ac si talis pater naturalis decessisset? sed de hoc casu contrariam legis sententiam esse Pomponius recte putat, ut eis non connumerentur. 6Si postea ingenuae uxoris pater materve artem ludicram facere coeperit, iniquissimum est dimittere eam debere, cum nuptiae honeste contractae sint et fortasse iam liberi procreati sint. 7Plane si ipsa artem ludicram facere coeperit, utique dimittenda erit. 8Eas, quas ingenui ceteri prohibentur ducere uxores, senatores non ducent.
44 Paulus, 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.
45 Ulpianus libro tertio ad legem Iuliam et Papiam. In eo iure, quod dicit invito patrono libertam, quae ei nupta est, alii nubere non posse, patronum accipimus (ut rescripto imperatoris nostri et divi patris eius continetur) et eum qui hac lege emit, ut manumittat, quia manumissa liberta emptoris habetur. 1Qui autem iuravit se patronum, hoc idem non habebit. 2Ne is quidem debet habere, qui non suis nummis comparavit. 3Plane si filius familias miles esse proponatur, non dubitamus, si castrensis peculii ancillam manumiserit, competere ei hoc ius: est enim patronus secundum constitutiones nec patri eius hoc ius competit. 4Hoc caput ad nuptam tantum libertam pertinet, ad sponsam non pertinet: et ideo invito patrono nuntium sponsa liberta si miserit, cum alio conubium habet. 5Deinde ait lex ‘invito patrono’: invitum accipere debemus eum, qui non consentit ad divortium: idcirco nec a furioso divertendo solvit se huius legis necessitate nec si ab ignorante divorterit: rectius enim hic invitus dicitur quam qui dissensit. 6Si ab hostibus patronus captus esse proponatur, vereor ne possit ista conubium habere nubendo, quemadmodum haberet, si mortuus esset. et qui Iuliani sententiam probant, dicerent non habituram conubium: putat enim Iulianus durare eius libertae matrimonium etiam in captivitate propter patroni reverentiam. certe si in aliam servitutem patronus sit deductus, procul dubio dissolutum esset matrimonium.
45 Ulpianus, 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.
46 Gaius libro octavo ad legem Iuliam et Papiam. Illud dubitationis est, an et qui communem libertam uxorem duxerit ad hoc ius admittatur. Iavolenus negavit, quia non proprie videtur eius liberta, quae etiam alterius sit: aliis contra visum est, quia libertam eius esse negari non potest, licet alterius quoque sit liberta: quam sententiam plerique recte probaverunt.
46 Gaius, 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.
47 Paulus libro secundo ad legem Iuliam et Papiam. Senatoris filia, quae corpore quaestum vel artem ludicram fecerit aut iudicio publico damnata fuerit, impune libertino nubit: nec enim honos ei servatur, quae se in tantum foedus deduxit.
47 Paulus, 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.
48 Terentius Clemens libro octavo ad legem Iuliam et Papiam. Filio patroni in libertam paternam eandemque uxorem idem iuris, quod ipsi patrono daretur, ex sententia legis accommodatur. idemque dicendum erit et si alterius patroni filius vivo altero libertam eorum uxorem duxerit. 1Si ignominiosam libertam suam patronus uxorem duxerit, placet, quia contra legem maritus sit, non habere eum hoc legis beneficium. 2Si uni ex filiis adsignatam alter uxorem duxerit, non idem ius quod in patrono tribuendum: nihil enim iuris habebit, quia senatus omne ius libertorum adsignatorum ad eum transtulit, cui id pater tribuit.
48 Terentius 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.
49 Marcellus libro primo ad legem Iuliam et Papiam. Observandum est, ut inferioris gradus homines ducant uxores eas, quas hi qui altioris dignitatis sunt ducere legibus propter dignitatem prohibentur: at contra antecedentis gradus homines non possunt eas ducere, quas his qui inferioris dignitatis sunt ducere non licet.
49 Marcellus, 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.
50 Idem libro tertio ad legem Iuliam et Papiam. Proxime constitutum dicitur, ut, cum quis libertam suam duxerit uxorem, quam ex fideicommissi causa manumiserit, liceat libertae invito eo nuptias contrahere: puto, quia non erat ferendus is qui ex necessitate manumisit, non suo arbitrio: magis enim debitam libertatem praestitit quam ullum beneficium in mulierem contulit.
50 The 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.
51 Licinnius Rufinus libro primo regularum. Matrimonii causa ancilla manumissa a nullo alio uxor duci potest quam a quo manumissa est, nisi patronus matrimonio eius renuntiaverit. 1Si autem filius familias matrimonii causa iussu patris ancillam manumiserit, Iulianus putat perinde eam haberi atque si a patre eius manumissa esset: et ideo potest eam uxorem ducere.
51 Licinius 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.
52 Paulus libro sexto ad Sabinum. Incestae nuptiae neque dotem habent et ideo omne quod perceptum est licet fructuum nomine auferetur.
52 Paulus, 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.
53 Gaius libro undecimo ad edictum provinciale. Nuptiae consistere non possunt inter eas personas quae in numero parentium liberorumve sunt, sive proximi sive ulterioris gradus sint usque ad infinitum.
53 Gaius, 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.
54 Scaevola libro primo regularum. Et nihil interest, ex iustis nuptiis cognatio descendat an vero non: nam et volgo quaesitam sororem quis vetatur uxorem ducere.
54 Scævola, 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.
55 Gaius libro undecimo ad edictum provinciale. Quin etiam nefas existimatur eam quoque uxorem ducere, quae per adoptionem filia neptisve esse coeperit, in tantum, ut et, si per emancipationem adoptio dissoluta sit, idem iuris maneat. 1Patris adoptivi mei matrem aut materteram aut neptem ex filio uxorem ducere non possum, scilicet si in familia eius sim: alioquin si emancipatus fuero ab eo, sine dubio nihil impedit nuptias, scilicet quia post emancipationem extraneus intellegor.
55 Gaius, 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.
56 Ulpianus libro tertio disputationum. Etiam si concubinam quis habuerit sororis filiam, licet libertinam, incestum committitur.
56 Ulpianus, 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.
57 Marcianus libro secundo institutionum. Qui in provincia officium aliquid gerit, prohibetur etiam consentire filio suo uxorem ducenti.
57 Marcianus, Institutes, Book II. Anyone who administers an office in a province cannot consent to the marriage of his son in said province.
57a In libro secundo de adulteriis Papiniani Marcianus notat:. Divus Marcus et Lucius imperatores Flaviae Tertullae per mensorem libertum ita rescripserunt: ‘Movemur et temporis diuturnitate, quo ignara iuris in matrimonio avunculi tui fuisti, et quod ab avia tua collocata es, et numero liberorum vestrorum: idcircoque cum haec omnia in unum concurrunt, confirmamus statum liberorum vestrorum in eo matrimonio quaesitorum, quod ante annos quadraginta contractum est, perinde atque si legitime concepti fuissent’.
57a Marcianus 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.”
58 Marcianus libro quarto regularum. A divo Pio rescriptum est, si libertina senatorem deceperit quasi ingenua et ei nupta est, ad exemplum praetoris edicti dandam in eam actionem, quia ex dote nullum lucrum habet quae nulla est.
58 Marcianus, 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.
59 Paulus libro singulari de adsignatione libertorum. Senatus consulto, quo cautum est, ne tutor pupillam vel filio suo vel sibi nuptum collocet, etiam nepos significatur.
59 Paulus, 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.
60 Idem libro singulari ad orationem divi Antonini et Commodi. Si quis tutor quidem non sit, periculum tamen tutelae ad eum pertineat, an sententia orationis contineatur? veluti si pupilla ab hostibus capta fuerit aut falsis allegationibus a tutela se excusaverit, ut ex sacris constitutionibus periculum ad eum pertineat? et dicendum est hos quoque ad senatus consultum pertinere: nam et huiusmodi periculum in numerum trium tutelarum computari comprobatum est. 1Sed si propter alterius personam periculum ad eum pervenit, videamus ne extra sententiam senatus consulti sit: veluti si magistratus in tutelae periculum incidit vel fideiusserit quis pro tutore vel curatore, quia nec in numerum trium tutelarum haec imputantur: et consequens est hoc probare. 2Quid ergo si honoris causa tutor datus sit? quatenus nec huiusmodi tutela in numerum computatur, numquid idem sit? sed ratio in contrarium ducit, quod dictum est et honorarium tutorem periculum solere pati, si male passus sit administrari tutelam. 3Quin autem ille, qui, cum datus est tutor, cessat in administratione, pertineat ad orationem, non est dubitandum, quia perinde tenetur ex sacris constitutionibus atque si gessisset. 4Quid ergo si, cum se vellet excusare aliquo titulo nec in promptu probationes haberet, excusationis negotium fuerit dilatum et inter moras pupilla adoleverit, an ad senatus consultum pertineat? quaestio in eo est, an et post pubertatem officio finito excusationem eius recipi oporteat: nam si recipitur et excusaverit, impune potest ducere: si vero non debeat recipi post officium finitum, non recte ducit. et ait Papinianus libro quinto responsorum officio finito excusationem recipi non oportere et ideo exacti temporis periculum ad eum pertinere. sed mihi hoc nequaquam placet: iniquum enim est propter dilationem, quae forte non dolo, sed quae ex necessitate contingit, non excusari vel nuptias impediri excusatione recepta. 5Quamvis verbis orationis cautum sit, ne uxorem tutor pupillam suam ducat, tamen intellegendum est ne desponderi quidem posse: nam cum qua nuptiae contrahi non possunt, haec plerumque ne quidem desponderi potest: nam quae duci potest, iure despondetur. 6Quid ergo si adoptivus filius tutoris duxerit pupillam illicite posteaque emancipatus fuerit? credendum est de adoptivis emancipatis senatum non sensisse, quia post emancipationem in totum adoptivae familiae obliviscuntur. 7Naturales liberi licet in adoptionem dati fuerint, senatus consulto continentur. 8Quid ergo si tutor datus provocavit et postea heres eius victus est? praeteriti temporis periculum praestare debet. an vero si filius heres fuerit et victus est, ad orationem pertineat? et consequens est hoc probare, quoniam rationem debet reddere.
60 The 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.
61 Papinianus libro trigensimo secundo quaestionum. Dote propter illicitum matrimonium caduca facta exceptis impensis necessariis, quae dotem ipso iure minuere solent, quod iudicio de dote redditurus esset maritus solvere debet.
61 Papinianus, 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.
62 Idem libro quarto responsorum. Quamquam in arbitrio matris pater esse voluerit, cui nuptum filia communis collocaretur, frustra tamen ab ea tutor datus eligetur: neque enim intellegitur pater de persona tutoris cogitasse, cum ideo maxime matrem praetulit, ne filiae nuptias tutori committeret. 1Mulier liberto viri ac patroni sui mala ratione coniungitur. 2Tutor, qui rationes curatori reddidit, puellam suam ante constitutum tempus aetatis eius uxorem ducere nec matrem ex alio matrimonio factam potest.
62 The 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.
63 Idem libro primo definitionum. Praefectus cohortis vel equitum aut tribunus contra interdictum eius provinciae duxit uxorem, in qua officium gerebat: matrimonium non erit: quae species pupillae comparanda est, cum ratio potentatus nuptias prohibuerit. sed an huic quoque si virgo nupsit, non sit auferendum quod testamento relictum est, deliberari potest: exemplo tamen pupillae nuptae tutori, quod relictum est potest mulier consequi. pecuniam tamen in dotem datam mulieris heredi restitui necesse est.
63 The 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.
64 Callistratus libro secundo quaestionum. Libertum eundemque tutorem pupillae eo, quod in matrimonium collocata ipsi tutori suo vel filio eius est, senatus relegandum censuit. 1Senatus consulti, quo prohibentur tutores et filii eorum pupillas suas ducere, puto heredem quoque tutoris extraneum sententia adprehendi, cum ideo prohibuerit huiusmodi nuptias, ne pupillae in re familiari circumscribantur ab his, qui rationes eis gestae tutelae reddere compelluntur. 2Tutor autem pupilli non prohibetur filiam suam collocare pupillo suo in matrimonium.
64 Callistratus, 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.
65 Paulus libro septimo responsorum. Eos, qui in patria sua militant, non videri contra mandata ex eadem provincia uxorem ducere idque etiam quibusdam mandatis contineri. 1Idem eodem. respondit mihi placere, etsi contra mandata contractum sit matrimonium in provincia, tamen post depositum officium, si in eadem voluntate perseverat, iustas nuptias effici: et ideo postea liberos natos ex iusto matrimonio legitimos esse
65 Paulus, 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.”
66 Idem libro secundo sententiarum. Non est matrimonium, si tutor vel curator pupillam suam intra vicesimum et sextum annum non desponsam a patre nec testamento destinatam ducat uxorem vel eam filio suo iungat: quo facto uterque infamatur et pro dignitate pupillae extra ordinem coercetur. nec interest, filius sui iuris an in patris potestate sit. 1Curatoris libertum eam pupillam, cuius patronus res administrat, uxorem ducere satis incivile est.
66 The 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.
67 Tryphoninus libro nono disputationum. Non solum vivo tutore, sed et post mortem eius filius tutoris ducere uxorem prohibetur eam, cuius tutelae rationi obstrictus pater fuit: nec puto interesse, exstiterit ei heres filius an abstinuerit paterna hereditate an nec heres fuit (forte exheredatus aut praeteritus emancipatus): nam et fieri potest, ut per fraudem in eum collocata bona patris propter tutelam revocari oporteat. 1De uno dubitari potest, si avus tutelam gessit neptis ex filio emancipato natae, an nepoti ex altero filio eam collocare possit sive emancipato sive manenti in potestate, quia par affectionis causa suspicionem fraudis amovet. sed etsi senatus consultum stricto iure contra omnes tutores nititur, attamen summae affectionis avitae intuitu huiusmodi nuptiae concedendae sunt. 2Sed et si filius familias tutor puellae vel curator fuit, puto vel magis patri eius non oportere eam nubere: numquid nec fratri, qui est in eiusdem potestate? 3Sed videamus, si Titii filius duxerit uxorem eam, quae tua pupilla fuit, deinde Titium vel filium eius adoptaveris, an peremuntur nuptiae (ut in genero adoptato dictum est) an adoptio impeditur? quod magis dicendum est et si curator, dum gerit curam, adoptaverit maritum eius puellae, cuius curator est. nam finita iam tutela et nupta puella alii vereor, ne longum sit adoptionem mariti eius impedire, quasi propter hoc interponatur, ut ratio tutelae reddendae cohibeatur, quam causam prohibitionis nuptiarum contrahendarum oratio divi Marci continet. 4Et si quis curator ventri bonisque datus sit, prohibitionem eiusdem senatus consulti inducit: nam et hic debet rationem reddere. nec spatium administrationis movere nos debet, quia nec in tutore nec curatore discrimen maioris aut minoris temporis, quo in huiusmodi munere quis fuerit, habitum esse. 5Si puellae tutelam Titius administravit vel curator negotia gessit eaque nondum recepta ratione decessit filia herede relicta, quaerenti, an eam filio suo posset Titius collocare in matrimonium, dixi posse, quia ratio hereditaria esset et sit simplex debitum: alioquin omnis debitor eam, cui obligatus esset ex aliqua ratione, prohibetur sibi filioque suo coniungere. 6Sed et is, qui pupillam abstinet bonis patris sui, rationem eius rei praestare debet et fieri potest, ut etsi inconsultius hoc fecerit, et hoc nomine condemnari debeat. sed et si optimo consilio usus sit auxilio praetoriae iurisdictionis, quia non solvendo pater eius decesserat, nihilo minus tamen, quia iudicio hoc probari oportet, impediuntur nuptiae: nam qui bene tutelam et ex fide administravit, nihilo minus prohibetur.
67 Tryphoninus, 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.
68 Paulus libro singulari ad senatus consultum Turpillianum. Iure gentium incestum committit, qui ex gradu ascendentium vel descendentium uxorem duxerit. qui vero ex latere eam duxerit quam vetatur, vel adfinem quam impeditur, si quidem palam fecerit, levius, si vero clam hoc commiserit, gravius punitur. cuius diversitatis illa ratio est: circa matrimonium quod ex latere non bene contrahitur palam delinquentes ut errantes maiore poena excusantur, clam committentes ut contumaces plectuntur.
68 Paulus, 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.