Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/99

Rh and threefold its value), but in the fourth century this was remitted altogether, if the father or other ascendant of a girl, betrothed before she was ten years old, renounced the marriage, and in the fifth century (472) it was reduced generally to twofold. Delay for two years to fulfil the promise was a sufficient justification for the girl’s marrying another.

Marriage in Roman Law is the union of life of man and woman for the purpose of having children as members of a family in the Roman Commonwealth. Both must be citizens of Rome or of a nation recognised for this status by the Romans; they must be of the age of puberty; if independent, must give their own consent, if not, their father must consent. Nuptias non concubitus sed consensus facit was the dominant rule of Roman Law. It was the avowed purpose of such a union and public recognition that distinguished marriage from concubinage. In earlier times the woman passed by one of several forms with all her property into the power (manus) of her husband and occupied the position of a daughter. Gradually a freer marriage was developed, by which the woman did not become part of her husband's family, but remained either under her father's power, or independent, and controlled, with the aid of a guardian for a time, her own property, except so far as she had given part as dowry. The ceremonials, which accompanied the old forms of marriage, gradually went out of use and had apparently ceased in or by the third century. The only external mark of marriage was then the woman's being led into her husband's house, and thus the paradoxical statement could be made that a woman could be married in the absence of her husband, but a husband could not be married in the absence of his wife. The settlement of a dowry grew to be, and was made by Justinian, a decisive characteristic of marriage, though its absence did not prevent a union otherwise legal and formed with the affection and intention of marriage from being such in the eye of the law.

Marriage, and of course also betrothal, could take place only between free persons, not of the same family, and not otherwise closely connected. The old law was reaffirmed by a constitution of Diocletian (295), which expressly forbad marriage of a man with his ascendants or descendants or aunt or sister or their descendants or with step-daughter, step-mother, daughter-in-law, mother-in-law or others forbidden by the law of old. A woman was forbidden to marry the corresponding relatives. Such marriage were incestuous. Relationship formed when one or both parties were slaves was equally a bar. Constantius (342) also forbad marriages with brother's daughter or grand-daughter and (in 355) marriage with brother's widow or wife's sister — a prohibition repeated in 415. The marriage of first cousins, forbidden with the approval of St Ambrose by Theodosius about 385, was relieved from extreme penalty (of fine) by his sons in 396, and expressly permitted in 405. Justinian (530) forbad marriage with a god-daughter. No change was made in the old law which permitted a step-son of one parent to marry a