Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/102

74 Under the former celibacy was not merely discouraged, but visited with the penalty of incapacity to take an inheritance or legacy, if the man was under sixty or the woman under fifty years of age. Constantine appears to have been the first to modify this legislation. No doubt the declension of the Roman population had ceased to have the importance which led to Augustus' stringent enactments, now that the Empire contained a wider field for supplying recruits for the army. And the Christian Church, coming by the fourth century to count the single life nobler than the married, and encouraging anchorite and monastic asceticism, looked on second marriages with increasing dislike and reprobation. The Emperors in the fourth century, though requiring the father's consent to the re-marriage of a woman under twenty-five years of age, and severe in condemnation and punishment of any woman who married again within ten months (in 381 extended to one year) from the death of her husband, in other cases interfered only to secure the interest of the children of the former marriage. Justinian dealt with the subject in 536 and 539. As regards any property derived from the former husband or wife the party marrying again, as already mentioned, retained only the usufruct, the children of the former marriage being entitled to the property in equal shares. As regards property not derived from the former partner, the party re-marrying was disabled from giving by dowry or otherwise or leaving to the second wife or husband more than the smallest share of it which any child of the former marriage would get. Under the law any excess was to be divided equally between the said children if not "ungrateful."

If property was left to a person on condition of his or her not marrying again, it used to be the practice to require an oath for the observance of the condition before the property was transferred. Justinian, in order to prevent frequent perjury and secure the execution of testator's intention, allowed the legatee, after a year for reflexion, to have a transfer of the bequest, or, if it be money, the payment of interest on it. Security had to be given, or at least an oath to be taken, by the recipient that he would, if the condition were broken, restore the property transferred with the profits or interest. His or her own property was tacitly pledged by the statute (536).

By second marriage a mother lost the right, which the law usually gave her, of educating her former children, and the guardianship, if she had it, and lost all dignities and privileges derived from her former husband.

Until the year 542 marriage could be dissolved in the life of the parties by mutual consent without special cause and with only such consequences as were agreed between them. In that year Justinian forbad any such divorce except in order to lead a life of chastity. For breach of this law he enacted in 556 that both parties were to be sent into a monastery for the rest of their lives; of their property one-third