a par with the children born in wedlock, except, indeed, in the special case in which the legitimation was effected by presentation to the curia. In this case the child acquired no rights of succession to any other person Nov. (lxxxix. than his father.

4).

The adoption of children in the broader sense, which included that form of adoption (arrogatio) by which a son who was no longer under his father's power was brought under the power of a new father, fictitiously so called, was at all times a prominent feature in Roman law, and the rules regulating it vacillated very slightly during the thousand years which the true history of that law covers. Its fortunes are a proof that the Roman family was even still more a legal and political than a moral conception. The Prætor, indeed, had consistently struggled by his occasional, though increasingly steady and uniform, legislation to substitute at all points the claims of natural relations in the matter of succession for the claims of remote connections favoured by the letter of the older law. Justinian achieved the final triumph of the natural over the legal family by refusing to all adopting parents, other than a child's maternal grandfather (or paternal grandfather where the father was emancipated) or earlier ascendant, all rights of succession to the property of an adopted child, such rights being reserved for the natural parent just as if no adoption had taken place.

In former times, indeed, the severely legal conception of adoption was obtruded into prominence through the formality of the three-fold sale (mancipatio), by Gaius (i. 132, which alone the natural parent could exclude 134). his son from his family, and prepare the way for the final conveyance of him to the adopter. In the earlier empire, however, the mere decree of the local magistrate was sufficient to transfer a son from one family to another. It was said that adoption always "imitated nature;" and on this ground, while the adopted person might be introduced into the new family either as a son, a grandson, or a great grandson, he must at least be eighteen years younger than the adopting parent.

The adoption (arrogatio) of persons who were freed from their parents' control was at all times treated as a matter of more public concern than the other species of adoption, because of the rights of succession which might be involved. In earlier days the gens, and in imperial times the fiscus or State treasury, might be unwittingly deprived of their claims to succession or intestacy through an adoption of the sort known as arrogation, which in its etymology recalls the formal law of the comitia curiata, through which alone the proceeding could be sanctioned, The substitute for this in latter days and in Justinian's time was an imperial rescript. This was granted as of course, on application and on satisfactory reasons being given as to the transaction being bonâ fide and presumably advantageous to the person to be adopted. So far as Justinian had not abolished all the adopter's pecuniary claims, security had to be given to a public official (tabularius) that if the adopted person died before the age of puberty, his property would be restored to those who would have succeeded to it if no adoption had taken place. The adopter could only emancipate the adopted son on giving satisfactory reason for it, and surrendering all the son's property. If the new parent disinherited or emancipated him without good reason, he was bound to leave him a fourth part (quarta Antonina) of his estate, that is, over and above both the property which he originally brought to the adopting parent and the improvements in that property which he had effected for him.

§3.-Husband and Wife.

In the principal sources of Roman law, marriage is treated mainly as an avenue to the constitution of the patria potestas, and as such it occupies a most central position in the general account of legal institutions, even independently of those rights and duties of husband, wife, children, and relatives which sprang from the fact of marriage itself. Like other parts of the law regarding the

composition of the Roman household, the customary institutions as well as the rules of law underwent considerable changes at different periods, though these were brought about almost insensibly, and in this way rather reflected the progressive and silent development of social and political ideas than were the forced product of conscious policy or of revolutionary accidents.

Of the three co-operating tendencies which almost universally contribute, in different proportions at different epochs, to frame the full conception of marriage, that is, the legal, the religious, and the moral notion, it was the last of the three-the moral-which, in concert with the legal, ultimately preponderated. Yet by the time of Justinian a new religious notion, due to the gradual occupation of the whole field of civil life by the ramified organization of the Christian Church, was gradually taking the place left vacant by the antiquated but long and fondly cherished usages of heathen and, more especially, patrician Rome.

The subject will be conveniently distributed into the following divisions—

(1) The constitution of the marriage.

(2) Divorce.

(3) The wife's property.

(1) THE CONSTITUTION OF THE MARRIAGE.

There were three essential ideas that at all times entered into and qualified the Roman conception of marriage. It was a union between a man and a woman, presumably of life-long duration; it reached to and penetrated all the affairs of life in which it was physically or legally possible for the two parties to share; it contemplated the birth and education of children (liberorum quærundorum causâ, an expression which seems to have survived from some ancient marriage ritual). Modes- L. 1, D. (xxiii. tinus says "Marriage is a union of a man and 2). woman, by which the whole of life is partaken of in common, and all rights, human and divine, are freely inter

changed between them (consortium omnis vitæ, divini et humani juris communicatio). Ulpian says that

15 D. (xxxv. I).

it is not cohabitation but consent which brings about a marriage.

There is no doubt that at all times in the development of the law the essence of the marriage consisted in the consent of the parties. The main question was throughout as to the evidence which was to be provided of such a consent having been manifested. The religious ceremonial which the customs of early Rome introduced in attendance on marriage, and which, in the case of the patrician marriage of confarreatio, reached a high pitch of ritualistic precision, afforded for many centuries the best and most indisputable evidence of the existence of a true marriage. Other evidence, not less satisfactory, though less overt to the general public, was supplied by the fictitious sale or coemptio, which, whether ripened or not into a complete transfer of the wife from the family of her father to that of her husband by a completion of the prescriptive cohabitation for an unbroken year, at least left no doubt of the existence of a true consent in both the parties to the engagement.

Even in Gaius' time, the older usages of the confarrcatio and the coemptio had become obsolete, at least as more than venerable curiosities, or than still lingering decorations of a social life fondly striving to connect itself with a far distant past. By Justinian's time, on the one hand, marriage was entirely liberated from all necessary formalities other than such as in all other cases were held to be necessary and sufficient manifestations of consent. On the other hand, either through the prevalence of Christian sentiments or a keener intuition of political expediency, a fresh impulse was given to the requirement of strict modes of proof, as bearing on the fact of the essential consent, which was the basis of marriage.

The most noticeable feature of Justinian's legislation was the institution, no doubt founded on habits existing since Constantine's time, of a sort of written marriage settlements (instrumenta dotalia), or, in place of them, of

attendance before the chief ecclesiastical minister (defensor ecclesia) of the district or Church. A public declaration had then and there to be made in the presence of three or four of the clergy, that on such a day of such a month, in such a year of the empire, that man and that Nov. (lxxiv. 4). woman had presented themselves, and were joined together as man and wife. The declaration had to be written, signed, and registered.

At first, Justinian enforced the making of written. marriage settlements in the case of the emperor's own family, senators, and the high officers of State comprised in the class of illustres. Other persons of middle rank, including those attached to the military profession, the civil service, and the more honourable commercial pursuits, had to testify the fact in the way just described. By Justinian's latest legislation, however, in the Nov. (cxvii. 4). 117th Novell, the only restriction imposed as affecting the evidence of consent is the requirement of a written marriage settlement in the case of the marriage of the highest officers of State. All other persons were free to marry with or without the use of written settlements, or any other formalities.

Though, however, the consent of the parties was the essence of the constitutive act which gave rise to a marriage, or, rather, was the marriage itself,-there were at all times certain inherent impediments which either rendered such a consent impossible or, at least, suspended its efficacy till they were removed out of the way. There were three classes of conditions which had to be satisfied before the consent of a man and woman could have the legal validity needed to constitute a marriage. There must be

(a) Personal capacity.

(b) The consent of persons having either of the parties in their power.

(c) The absence of special restrictions, whether natural, as founded on blood relationship, or more or less artificial, as introduced by custom or policy (connubium).