of Augustus, under the titles of the Julian law de maritandis ordinibus, and of the Papian and Poppean laws, comprised many prohibitions of marriage, which as they directly militated against the emperor's design of encouraging marriage, and restoring the population of the city, can only be supposed to have been so deeply incorporated in the prevailing laws, customs, and principles of the age, that even the last necessity of the state, and the will of the sovereign, could not remove them.

The principal provision of the Julian law was, that senators and the sons and daughters of senators should not marry the sons and daughters of freedmen, nor any persons, who, themselves or whose parents, had used the art of a player. The law included the children of senators by adoption, as well as by birth; the latter interminably, the former until the time of their emancipation: it included also their grandchildren, who were not permitted to marry into the family of the freedmen, with the exception probably of the liberti aureis annulis. The alleged principle of this law was, that the dignity of the highest rank should not be compromised by matrimonial connexions with an inferior rank; and the effects of violating the law, and indeed of invalid marriages in general, were, 1. that there could be no dowry, for dowry implies the validity of the marriage, but the dowry was not forfeited to the treasury, which was peculiar to incestuous marriages; 2. that the daughter of a freedman, who should impose herself for an ingenuous woman on one of senatorian family, would be liable to an action; 3. that the children born of such marriages

would not be legitimate; 4. that the action rerum amotarum could not be brought by persons thus united; 5. that no action for adultery could be brought, as by the husband against the wife; 6. that the presents which they should make to each other would be forfeited to the treasury. There were nevertheless exceptions to this law. If a man of senatorian rank should marry a woman of libertine condition, she would not be his wife while he retained his dignity, but she would nevertheless be in a condition to become his wife, if he should lose it. With the permission of the emperor, a senator might lawfully marry a woman of libertine family; and Augustus, when "objections were made to women of high condition, permitted the nobles to marry emancipated slaves"." It was an old question, whether the marriage of a man with a woman of libertine family was vitiated by his elevation to the senatorian rank, which was the opinion of the ancient lawyers, but most justly superseded by Justinian. If the daughter of a senator should be married to a freedman, her marriage would not be disturbed. by her father's degradation from the senatorian rank. If a senator's daughter should degrade herself by acting, or by prostitution, or should be publicly condemned, she would be free to marry into a freedman's family; and the widow of a senator, who was not herself born of senatorian family, might marry a freedman, because the prohibition extended only to the children and descendants of senators *.

These restrictions were confined to persons of senatorian rank, with the exception of whom the Papian law permitted other ingenuous persons to marry the daughters of freedmen, and affirmed the legitimacy of their issue. Even to these however it prohibited the marriage of the actress, the bawd, the prostitute, and the adulteress, and the woman who had been condemned upon public trial. It was indeed a general rule, that between persons of free and persons of servile condition there could be no valid marriage. If a free woman should marry a slave, the marriage would be null, and the issue would be slaves: and if the woman should persist in the marriage, after three proclamations by the master of the slave, she was herself liable to be sold for a slave'. If a slave should marry a freeman, the dower could not become the property of the husband, but by right of possession for the prescribed period but if she should obtain her liberty, while she was living with her husband, the marriage would be confirmed, and the dower might be reclaimed on the dissolution of the marriage. Slaves attached to the soil could not marry with free women, even with consent of their masters: their children would however be free. Free men on the contrary might marry with slaves attached to the soil, but their children would inherit the condition of their mother". These are some of the subtle distinctions of the Roman law.

The Julian law rescinded the oath imposed on freedmen and freed women, that they should not

See Tertull. ad Ux. 1. ii. s. 8. et Matr. c. 2.

z Fr. Hotman de Rit. Nu.

marry, provided that they were disposed to contract marriage lawfully. At the same time, it restricted the freed woman who should be married to her patron from marrying to any other without his consent, so long as he was willing to consider her as his wife, and acted towards her in the capacity of a wife.

Thus the Roman law, in respect of difference of condition, interdicted the marriage of persons of free with persons of servile condition: it restricted the senatorial rank from marrying with the libertine rank; and it prohibited in all cases the marriage of persons of ingenuous condition with persons of licentious character and occupation.

The possession of certain offices formed a fourth impediment, or restriction, upon marriage.

Marriage with the Vestal virgins was pronounced incestuous and nefarious; and it is one of the characteristic anecdotes of Heliogabalus, that he committed incest in most impiously defiling a virgin who was consecrated to Vestab.

Persons holding any office in the provinces were forbidden to marry the barbarian women, the women that were either born or resident in the provinces, under the apprehension that they might abuse their power, and rather force than conciliate these marriages, which were therefore pronounced to be null, and liable to all the penalties of nullity. These provisions of the old law were extended by the later emperors to the children, relations, companions, counsellors, and domestics, of the provincial officers,

• Brisson de Jure Con.

b

Xiphilin. apud Brisson.

who were condemned to the loss of the arrhæ sponsalitiæ, with this singular distinction, that if the marriage had been completed contrary to law, the woman was entitled to keep them; but if espousals only had been contracted, as these were not unlawful, she was bound to return them, unless she should afterwards assent to the marriage. The provincial officer was also at liberty to marry a provincial woman, to whom he had been espoused before he proceeded to the province: and if he should marry a provincial woman during his administration, and at the expiration of his office both should assent to confirm the marriage, the marriage would then become lawful, and the issue legitimate. The provincial officers might also consent to the marriage of their daughters, but not to the marriage of their sons, with provincials; and the reasons assigned for this distinction are, the danger of delaying a daughter's marriage, and the greater interest which a father may be supposed to take in the marriage of his son.

A decree of the senate, in the time of Antoninus and Commodus, prohibited guardians from marrying their wards, and giving them in marriage to their sons. The pretence for this prohibition was, that guardians, under cover of marriage, might evade a just account of their guardianship, and therefore the law only extended until the woman should attain her twenty-fifth year, when she had the power of demanding the account. Until the woman attained this age the interdict was extended to all persons of whom the account might in any wise be demanded.

C

Brisson de Jure Con. Fr. Hotman. de Sponsal, c. 2.