but when they attained the proper age their own consent would be also necessary to the contract of marriage. For the purpose of obtaining the rewards proposed to husbands by Augustus, in the Papian and Poppean laws, "pretended marriages were contracted with children or females under age, and the completion of course indefinitely deferred; and to prevent such evasions and frauds, it was enacted, that no marriage could be legally contracted with any female under ten years of age, nor the completion of any marriage be delayed above two years after the date of the supposed contracti." The principal restriction upon the age of marriage respected the capacity of giving birth to children, without which no marriage was lawful. This was generally defined to be fourteen in the male, and twelve in the female: and the law upon this point ordained, that if a girl under the age of twelve years should be contracted in marriage, she should not be esteemed a just and lawful wife, nor possess the privileges of a wife before she had completed her twelfth year. The lawfulness of marriage was circumscribed by the capacity in which it originated. The Julian and Papian laws declared the marriage of a man of sixty, with a woman of the age of fifty Ferguson's Rom. Republ. c. xxxviii. Fr. Hotman de Sponsal. c. 2. k Fr. Hotman de Rit. Nupt. et Matr. c. 2. Hence arose a question, whether, as this was not a perfect marriage, it was a lawful betrothing; which some affirmed, on the ground that the Act was not altogether invalid; and others denied, maintaining that the essence of espousals consisted in the promise of a future marriage. years, invalid, because it could not produce what was supposed to be the true end of marriage, and because it defeated the design of Augustus, who in the construction of these laws contemplated the renewal of the population of the city, which had been wasted by the civil wars: he was also influenced by the petition of the Trachalli, whose mother had in her old age married an old man; but Augustus restored the maternal inheritance to the sons, and took away the dower, because the marriage was not contracted upon a proper motive and principle. This part of the Papian law was rescinded by the Emperor Claudius, who procured a decree of the senate, that if a man of more than sixty should marry a woman of less than fifty years, the marriage should be as valid as if the man had been less than sixty: but if a woman of more than fifty should marry a man of less than sixty, the marriage should be unlawful, and convey no right to inheritance or dower'. This contemptible trifling was at least worthy of its imperial author. Country formed another requisite qualification in the Roman marriages, which could not be lawfully contracted but between Roman citizens. The children of a foreigner by a Roman, whether man or woman, were foreigners, inheriting the condition of the inferior parent; they were accounted spurious, they were called hybride, or mongrels, and their condition was little better than that of slavesm They who were not Roman citizens could not ob 1 Brisson de Jure Connub. in Seneca, Ben. iv. 35. Adam's Rom. Antiq. p. 462. tain the right of marriage without first obtaining the freedom of the city: even the Latins could not intermarry with the Romans upon any other condition; and it is recorded as an especial favour which was granted to the Campanians, that, after they had obtained the freedom of the city, and were comprehended in the roll and muster of the censors, they solicited and obtained permission to marry Roman women, or to retain the wives whom they had previously married, with a recognition of the legitimacy of the children who had been born to them". Antony excited the greatest odium at Rome by his marriage with Cleopatra, against the laws and customs of the country; and the people were so indignant at the marriage of Titus with Berenice of Egypt, that he was constrained to divorce her. But when, by the decree of Antoninus, all the people of the Roman empire were declared to be citizens, marriage with barbarians only was interdicted; and even this restriction eventually wore off before the time of Prudentius, when foreigners were admitted to the rights of marriage. Liv. Hist. 1. xxxvii. • "Yet I much question, for I cannot stay to enquire, whether the triumvir ever dared to celebrate his marriage either with. Roman or Egyptian rites." Gibbon, Rom. Emp. c. liii. n. 59. Invitus invitam dimisit. Suet. in Tito. "To dismiss with reluctance the reluctant Berenice." Gibbon. Brisson de Jure Con. Fr. Hotman de Rit. Nupt. et Matr. c. 2. Prudentius contra Symmachum, l. ii. nunc per genialia fulcra Externi ad jus connubii; nam sanguine misto Difference of state, quality, or condition, constituted a third restriction upon Roman marriages. Children were not permitted to marry without consent of their fathers. This restriction has recently formed the subject of a practical question, and its details are therefore reserved for separate discussion. By the law of the Twelve Tables" the distinction of Patrician and Plebeian was so great that persons of these different orders were not permitted to intermarry;" and the reason assigned for this prohibition was, "lest the sexes, from passion, forgetting the distinction of ranks, should in this manner unite their families together';" and especially lest from the ambiguity of their progeny the right of taking the auspices, which had been hitherto appropriated to the patricians, should be disturbed and claimed by those who were not properly of Patrician rank, and who could not claim to be the heirs of a noble parentages. It was not long before this partial law was repealed and superseded, at the instance of Quintus Canuleius, who proposed to legalize the marriages of Patricians with Plebeians. The fathers were offended at the proposition, alleging, that their blood was contaminated, and the rights of families confounded; that an attempt was made to bring forwards the dregs of the people, and to effect the confusion of public and private auspices; that there would no more be any thing pure and uncorrupt; that all distinctions would be removed; that no man would any more know himself or his posterity; and Ferguson's Rom. Rep. c. 2. Brisson de Jure Connub. that, by the permission of these promiscuous marriages, the intercourse of Patricians and Plebeians would be as unrestrained as that of the beasts of the field. It was justly answered by Canuleius, that the people asked no law of marriage which was not already given to neighbouring and to foreign states; that their conquered enemies possessed the right of the city, which was more than the right of marriage; that the law was but a recent innovation of the decemvirs, carried by the worst precedent, and with the highest injury to the people, who could suffer no greater reproach than to be rejected, as contaminated and unworthy of marriage; that the nobility, which the law sought to preserve, was itself of foreign extraction, or of royal gift, or of popular election; and might be sustained by a private resolution, not to marry, and not to suffer their daughters or sisters to marry, into Plebeian families, without the insult and contumely of a public law, by which the society of the city was divided and distracted. There would be equal justice in interdicting the Patricians and Plebeians from the use of the same neighbourhood, the same entertainments, the same road and forum. They asked but the right of citizens, nor could their petition be rejected without meditated insult and indignity, nor could the union of the city be revived, unless the right of marriage was restored, and the people were again permitted to coalesce, to be joined and consolidated in the familiar union of domestic lifet. The laws which were passed by the management Liv. Hist. 1. iv. s. 1-6. |