Page:The evolution of marriage and of the family ... (IA evolutionofmarri00letorich).pdf/185

 more care, and transformed into an institution as regular as marriage proper. It was, besides, indispensable in a country where the right of marriage, the jus connubii, was restricted. The leges Julia and Papia Poppœa also expressly authorise it.

In short, the Roman concubinate was a free union between a man and a woman not wishing, or not being able, to marry. It was lawful to have as concubine a woman with whom marriage was forbidden—an adulteress, an actress, a woman of bad life, or a freed slave. This last case was the most frequent, most moral, and the most protected by the laws.

The intention of the parties, revealed either by a formal declaration, or by the inequality of conditions, determined between marriage and the concubinate. The dowry was one of the signs which served to distinguish marriage from the concubinate.

The Roman concubinate was only, in fact, a marriage of inferior degree. Thus a married man could not take a concubine. A bachelor could not have several at the same time.

The concubinate implied paternity. The child was considered as a natural child of the father (naturalis, non vulgo conceptus), though he did not enter the father's family or become his heir, but followed the status of his mother.

The institution of the Roman concubinate evolved naturally, and its conditions were more and more ameliorated.

Under Constantine, the legitimation of children born from a concubinate was permitted in a general way by marriage between the father and the woman who had been his concubine up to the day of marriage. It was necessary, however, that the man should not have at the time a legitimate child. But Justinian authorised the legitimation even in this last case; he granted also the benefit of legitimation to the children of an enfranchised slave marrying