DE NVPTIIS.
§ 56. A Roman citizen contracts civil wedlock and begets children subject to his power when he takes to wife a citizen of Rome or a Latin or alien with whom a Roman has capacity of civil wedlock; for as civil wedlock has the effect of giving to the children the paternal condition, they become by birth not only citizens of Rome, but also subject to the power of the father.
§ 57. And for this purpose veterans often obtain by imperial constitution a power of civil wedlock with the first Latin or alien woman they take to wife after their discharge from service, and the children of such marriages are born citizens of Rome and subject to paternal power.
§ 58. But it is not any woman that can be taken to wife, for some marriages are prohibited.
§ 59. Persons related as ascendent and descendent are incapable of lawful marriage or civil wedlock, father and daughter, for instance, mother and son, grandfather and granddaughter; and if such relations unite, their unions are called incestuous and nefarious; and so absolute is the rule that merely adoptive ascendents and descendents are for ever prohibited from intermarriage, and dissolution of the adoption does not dissolve the prohibition: so that an adoptive daughter or granddaughter cannot be taken to wife even after emancipation.
§ 60. Collateral relatives also are subject to similar prohibitions, but not so stringent.
§ 61. Brother and sister, indeed, are prohibited from intermarriage whether they are born of the same father and mother or have only one parentin common: but though an adoptive sister cannot, during the subsistence of the adoption, become a man’s wife, yet if the adoption is dissolved by her emancipation, or if the man is emancipated, there is no impediment to their intermarriage.
§ 62. A man may marry his brother’s daughter, a practice first introduced when Claudiusmarried his brother’s daughter Agrippina, but may not marry his sister’s daughter, a distinction laid down in imperial constitutions, nor may he marry his father’s sister or his mother’s sister.
§ 63. He may not marry one who has been his wife’s mother or his son’s wife or his wife’s daughter or his father’s wife. I say, one who has been so allied, because during the continuance of the marriage that produced the alliance there would be another impediment to the union, for a man cannot have two wives nor a woman two husbands.
§ 64. A man who contracts a nefarious and incestuous marriage is not deemed to have either a wife or children; for the offspring of such a union are deemed to have a mother but no father, and therefore are not subject to paternal power; resembling children born in promiscuous intercourse, who are deemed to have no father, because their true father is uncertain, and who are called bastards either from the Greek word denoting illicit intercourse or because they are fatherless.
In any treatise on the law of marriage that we open we shall meet the expression, the marriage contract; and this suggests the inquiry, is marriage a contract, and, if so, to which class of Roman contracts, Verbal, Literal, Real, Consensual, 3 § 89, is Roman marriage to be referred? Most writers assume that it was a Consensual contract, on the strength of texts like the following: Nuptias non concubitus sed consensus facit, Dig. 35, 1, 15. ‘Marriage does not depend on cohabitation, but on consent.’ Ortolan, however, remarks that consensual contracts could be formed by absent contractors, Inst. 3, 22, 2, whereas a marriage could not be contracted in the absence of the wife, Paul, 2, 19, 8; and shows that, besides the consent of the parties, delivery of possession of the wife to the husband was required, from which he infers that Roman marriage was not a Consensual but a Real contract. It is true that marriage might be contracted in the absence of the husband; but this was only under certain conditions, Dig. 23, 22, 5. ‘A man in his absence may marry by letter or message, provided the woman is led to his house: a woman in her absence cannot marry by letter or message, for the leading must be to the husband’s house, as the domicile of the married pair.’ And precisely the same conditions were sufficient in other cases to constitute delivery of possession, Dig. 41, 2, 18, 2. ‘If a vendor deposit any article in my house by my order, I have possession of it though I have never touched it.’ Consensus, then, in the above-quoted passage, is not opposed to delivery of possession, but to cohabitation, or to the use of certain words or certain documents, or to the solemn and graceful ceremonial with which custom surrounded the matrimonial union.
Real contracts, however, are executory on one side and executed on the other, whereas in the conjugal relation both parties are on the same footing in respect of execution; and we may ask whether marriage is a contract at all; whether it does not rather fall under the opposite category of alienation or conveyance. Instead of finding its analogon in locatio-conductio or societas (consensual contracts) or pignus or commodatum (real contracts), may we not rather, with Savigny, find it in transfer of dominion or other creations of real right, such as adoption, the concession of patria potestas, or emancipation? This seems the truer view, and if we use the expression, marriage contract, we must use the term contract not in a specific sense, as opposed to conveyance, but in the generic sense of bilateral disposition (as opposed to unilateral disposition, e.g. testation), a sense embracing both contract proper and conveyance, and extending beyond the sphere of Property into the relations of domestic life. Contract proper and conveyance, though generally contrasted in jurisprudence, have much in common. If contract in its narrower sense is defined to be the concurrence of two manifestations of will creating a jus in personam, and conveyance the concurrence of two manifestations of will creating a jus in rem, the concurrence of two manifestations of will creating a jus is an element common to both terms of the comparison, and this common element may be denominated in a generic sense a contract. Contract in the narrower sense may then be distinguished as an obligative contract and conveyance as a translative contract, and the latter head will include the contract of marriage, if we continue to employ this expression.
As in respect of property or dominion we find in Roman law the distinction of Quiritary and Bonitary, that is, of civil and gentile, ownership, so in respect of the conjugal relation we find the distinction of Roman or civil marriage (connubium, justae nuptiae, justum matrimonium) and gentile marriage (nuptiae, matrimonium), of which the former alone was valid at civil law (connubium est uxoris jure ducendae facultas, Ulpian, 5, 3; ‘connubium is the capacity of marriage valid by civil law’) and capable of producing patria potestas and agnatio, though the latter produced legitimate children (justi as opposed to naturales liberi) and cognatio or natural relationship.
Capacity of civil marriage (connubium) is (a) absolute and (b) relative. (a) Only citizens have the absolute capacity of civil marriage, and such Latins and aliens as are specially privileged, § 56: slaves are incapable both of civil and gentile marriage. (b) Capacity of civil marriage is, however, always relative to another person who forms the other party to the union. A citizen only has connubium with a citizen or with such Latins and aliens as are specially privileged; and, before the lex Papia Poppaea was passed, a freeborn citizen (ingenuus) had no connubium with a citizen by manumission (libertinus). Lege Papia cavetur omnibus ingenuis, praeter senatores eorumque liberos libertinam uxorem habere licere, Dig. 23, 2, 23. ‘The lex Papia permits all freeborn citizens, except senators and their children, to marry freedwomen.’
§§ 58-63. The prohibition of marriage between collateral relations, originally perhaps extended as far as there were legal names for the relationship, i. e. as far as the sixth degree, for Tacitus mentions that second cousins were once incapable of intermarriage, sobrinarum diu ignorata matrimonia, Ann. 12, 6; and Livy (20, see Hermes, 4, 372), in a fragment discovered by Krueger, expressly says that marriage was once restricted within this limit. ‘P. Coelius patricius primus adversus veterem morem intra septimum cognationis gradum duxit uxorem. Ob hoc M. Rutilius plebeius sponsam sibi praeripi novo exemplo nuptiarum dicens sedicionem populi concitavit adeo, ut