MARRIAGE IN OLD ROME marry his brother's daughter (the Emperor Claudius did), but not his sister's. He could not marry his aunt, nor mother-in-law, nor daughter-in-law, nor step-daughter, nor his step-mother. Gaius goes on to tell us, "If any man has contracted an unholy or in cestuous marriage he is considered as hav ing neither wife nor children. For the off spring of such cohabitation are regarded as having a mother indeed but no father at all; and hence they are not in his power (potestas), but are as those whom a mother has conceived out of wedlock." (Com. of Gaius, I, 58-64.) This writer gives, with great particularity, the consequences of a marriage between a Roman and a foreigner, a Roman and a slave woman, a Roman matron and a slave, upon the children and the parents as far as concerned citizenship and parental authority. A free woman who had unlawful connec tion with her slave was, according to the law of Constantine, to be put to death, the slave to be burnt alive. Constantine also prohibited the union of a freeman and a slave under the penalty of exile and the con fiscation of goods as far as the man was concerned, and servitude in the mines for the woman. Justinian mitigated the pun ishment as far as the freeman and the slave woman, but not in regard to the former offence. A law of Claudius condemned a free wo man who married a slave to servitude; by Justinian this was tempered to a sentence of separation. Christianity long recognized in the East the distinction between the marriage of a freeman and the concubinage of the slave. This latter union was not blessed by the Church until Basil the Macedonian (A.D. 867—886) enacted that the priestly benedic tion should hallow it; but the deeprooted prejudices of centuries still opposed the law of the emperor. Later laws, how ever, improved matters by providing that the marriage of slaves should be celebrated in the church, that slaves and freemen
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should receive the same nuptial benediction, but that such acts should not confer free dom on the slave. (Milman, Latin Chris tianity, B. Ill, ch. V.) As Milman puts it, "The Roman law ex tended its prohibitions to connections formed by affinity or adoption. Connec tions by marriage were as sacred as those of natural kindred, and an union with an adopted brother or sister was as inflexibly forbidden as in the case of blood. The Roman Christian, when he came, had no necessity to recur to the books of Moses — the old law was sufficiently rigorous. It forbade the union of a guardian, or the son. of a guardian, and his ward. Justinian con sidered that sponsorship in baptism implied an affection so tender and parental as to render a marriage between parties so spirit ually related unholy and so forbade it." (Latin Christianity, Book III, ch. V.) Valentinian and Marcian forbade marriage with a slave or the daughter of a slave, with a freed woman or her daughter, with a tavern-keeper or her daughter, or with the daughter of a procurer, a gladiator, or a huckster. If a senator or the son of a senator married one of these prohibited ones the children followed the position of the mother, and indeed it was considered no marriage. If a man was married to such and became a senator, his marriage was ipso facto dissolved. The Lex Julia Papia et Papia Poppaca (can one imagine a sweeter name for a law anent the fair sex?) declared the marriage able age for males to be between twenty and sixty, and for women between twenty and fifty, and whoever was unmarried between those ages was subjected to a tax and could not be an heir, except to near relatives, and could not receive legacies. Under this law any woman who had three children obtained special privileges; having four children re leased a freedwoman from the guardianship of her patron, and three children put a free patroness on an equality with a patron. The XII Tables, passed in 450 B.C., did
