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The law did not however extend to a daughter of the ward, or restrain the guardian from marrying his daughter to a male ward : and the guardian was himself at liberty to marry a ward to whom he had been betrothed, or destined by her father's will; or who was more than twenty-five years of age, or whose account had been rendered ; and if he was already married to her, or had been appointed guardian without his privity, the law did not supersede the marriage. In all other cases, the consequences of violating this law were, besides the other penalties of forbidden marriage, infamy, fine, imprisonment, and banishmento.
The Roman law, contemplating their natural incapacity of consent, did not admit the marriage of persons that were mad at the time of their marriage : it authorized the marriage of persons that were deaf or dumb.
In respect of consanguinity and affinity including adoption the Roman law was more simple, and conformable with the primeval rule.
It restricted every kind of polygamy. It was never lawful at Rome to have more than one wife, and a sentence of infamy was pronounced on the offender who should enter even into a second espousals. The tribune Cacina indeed, at the instigation of Cæsar, prepared a law that the Romans should be permitted to multiply wives at their pleasure, but the law was never brought forward ; and it is one of the many vices imputed to Antony, that
Brisson de Jure Con. Fr. Hotman de Rit. Nu, et Matr. c. 3. e Brisson. de Jure Con.
he was the first Roman who had two wives. His bad example was followed by the Emperor Valentinian, who, to cover his own offence, proposed a law giving the same liberty to others, but the law was not accepted. The infamy of the proposed licence was recognized in the decrees of Valerian and Gallienus, and of Diocletian and Maximianus, and was only superseded by the capital penalty enacted in the Constitutions of Constantine'.
It was part of the ancient law of Rome, even from the time of Numa, that a woman should not marry within ten months of her husband's decease ; and when, for the purpose of consolidating the union between Antony and Octavius, it was proposed, that Antony should marry Octavia, the sister of Octavius, and the widow of Marcellus then recently deceased, the marriage, in itself unlawful, was only sanctioned by an especial decree of the senate. Ten months constituted the ancient year of Romulus, and the Emperors Gratian, Valerian, and Theodosius, added two months to the time of the widow's mourning, so as to make it again a complete year, within which she was not permitted to marry, without being branded with infamy, and degraded from the honour and privilege of an honourable and noble woman. Caligula, in dedicating the temple of Augustus, gave permission to widows who were not pregnant to marry within the limited period : and it is recorded, that both Heliogabalus and Anastasius married widows shortly after the decease of their husbands. The restriction which was laid
' Brisson, de Jure Con.
upon widows was also laid upon women that were divorced. In case of a divorce bonâ gratiâ, as it was called, or with mutual consent, the woman was not permitted by the constitution of Anastasius to marry within the
if she divorced herself without just and sufficient cause, she was not permitted to marry within five years.
The severity of the ancient law, in' prescribing a certain period of widowhood, prevented the indecency of a widow's marriage while she was pregnant by a former husband. The chief instance of such a marriage is that of Augustus with Livia, the wife of Drusus, who, under the influence of his passion, affected to consult the Pontifices, and they consented to the sovereign's will, with the subtle distinction, that if there was any doubt concerning the father the marriage should be delayed, if there was no doubt delay was unnecessary". Augustus therefore married Livia, who within three months became the mother of Claudius Drusus Nero, whose birth was celebrated with sarcastic raillery on the peculiar happiness of the emperor'. Similar marriages are imputed to Hortensius with Martia, the wife of Cato Uticensisk, and to Caligula with Mi
& Brisson. de Jure Con.
παιδια. . * Plut, in Cato. Uticens. Such marriages resembled the practice not uncommon among the Greeks and Romans of lending a wife : a practice which calls forth the just indignation of Tertullian, Apologet. s. 39, where he eloquently contrasts tbe purity and reserve of the Christian marriages with the licentious indifference of the Roman and the Grecian marriages. VOL. I.
lonia Cæsonia, with whom he had previously committed adultery!
These restrictions upon polygamy were designed to ascertain the legitimacy of the issue, and to uphold the reverence which is due from the wife to the husband, and from the husband to the wife. In respect of consanguinity, affinity, and even of adoption, there could be none but invalid and incestuous marriages in the right line of relations, whether ascending or descending. It was incestuous by the law of nations; it was a violation of the law of nature, divinely written and engraven on the heart; it had been a corruption of common humanity to sanction marriage between any who occupied the relation of parents and children, between the father and the daughter, the mother and the son, the grandfather and the granddaughter, the grandmother and the grandson. This was the Roman law, to which none objected, but such as the Romans accounted barbarous. The same provision was justly extended to the issue of unlawful and servile marriages; and it was rightly judged to be contrary to natural law and modesty, that a father should, under any circumstances, marry his daughter". The vio . lation of these restrictions was, under the ancient law of Rome, a capital offence, to be punished by the Pontifices".
Neither did the Roman law give validity to marriages between persons related by affinity. It was not lawful to marry a father's wife, nor a grand
' Brisson de Ju. Con. Fr. Hotman de Rit. Nu. et Matr. c. 5. m Ibid. n Beza de Divortiis.
father's wife, nor a wife's mother, grandmother, or great grandmother. In language of indignation, nearly resembling that of the apostle, Cicero inveighs against a woman who had married her sonin-law, without auspices, without authority, with omens unpropitious. Oh! the incredible wickedness of the woman, wickedness unheard of but in this single instance! Oh! the unbridled and unrestrained passion! Oh! the extraordinary boldness! The Emperor Antoninus Caracalla is the only recorded example of this inauspicious marriage, in which he made his will the law, and gave the sanction to a practice which his authority should have restrained, marrying his mother and adding incest to parricide. Nor might the son's wife or the grandson's wife marry the father or grandfather of her husband. Both of these marriages, of the mother-inlaw with her son-in-law and of the daughter-in-law with her father-in-law, were confessedly incestuous, and contrary to modesty, chastity, natural delicacy, and reserve, and to public honouro.
The Roman law still further restricted the marriage of a father with a woman betrothed to his son, and of a son with a woman betrothed to his father : although they were not married, and therefore not properly in the relation of daughter-in-law and mother-in-law. The decree of the Emperor Alexander also interdicted the marriage of children with the concubines of their fathers P.
Persons related by adoption, in the degrees of parent and child, were not permitted to marry even