Chapter XXVIII: Section 61: W

106 (return) [ By Justinian, the old law, the jus necis of the
Roman father (Institut. l. iv. tit. ix. No. 7) is reported and
reprobated. Some legal vestiges are left in the Pandects (l.
xliii. tit. xxix. leg. 3, No. 4) and the Collatio Legum Romanarum
et Mosaicarum, (tit. ii. No. 3, p. 189.)]

107 (return) [ Except on public occasions, and in the actual
exercise of his office. In publicis locis atque muneribus, atque
actionibus patrum, jura cum filiorum qui in magistratu sunt
potestatibus collata interquiescere paullulum et connivere, &c.,
(Aul. Gellius, Noctes Atticae, ii. 2.) The Lessons of the
philosopher Taurus were justified by the old and memorable
example of Fabius; and we may contemplate the same story in the
style of Livy (xxiv. 44) and the homely idiom of Claudius Quadri
garius the annalist.]

The first limitation of paternal power is ascribed to the justice
and humanity of Numa; and the maid who, with his father’s
consent, had espoused a freeman, was protected from the disgrace
of becoming the wife of a slave. In the first ages, when the city
was pressed, and often famished, by her Latin and Tuscan
neighbors, the sale of children might be a frequent practice; but
as a Roman could not legally purchase the liberty of his
fellow-citizen, the market must gradually fail, and the trade
would be destroyed by the conquests of the republic. An imperfect
right of property was at length communicated to sons; and the
threefold distinction of profectitious, adventitious, and
professional was ascertained by the jurisprudence of the Code and
Pandects. 108 Of all that proceeded from the father, he imparted
only the use, and reserved the absolute dominion; yet if his
goods were sold, the filial portion was excepted, by a favorable
interpretation, from the demands of the creditors. In whatever
accrued by marriage, gift, or collateral succession, the property
was secured to the son; but the father, unless he had been
specially excluded, enjoyed the usufruct during his life. As a
just and prudent reward of military virtue, the spoils of the
enemy were acquired, possessed, and bequeathed by the soldier
alone; and the fair analogy was extended to the emoluments of any
liberal profession, the salary of public service, and the sacred
liberality of the emperor or empress. The life of a citizen was
less exposed than his fortune to the abuse of paternal power. Yet
his life might be adverse to the interest or passions of an
unworthy father: the same crimes that flowed from the corruption,
were more sensibly felt by the humanity, of the Augustan age; and
the cruel Erixo, who whipped his son till he expired, was saved
by the emperor from the just fury of the multitude. 109 The Roman
father, from the license of servile dominion, was reduced to the
gravity and moderation of a judge. The presence and opinion of
Augustus confirmed the sentence of exile pronounced against an
intentional parricide by the domestic tribunal of Arius. Adrian
transported to an island the jealous parent, who, like a robber,
had seized the opportunity of hunting, to assassinate a youth,
the incestuous lover of his step-mother. 110 A private
jurisdiction is repugnant to the spirit of monarchy; the parent
was again reduced from a judge to an accuser; and the magistrates
were enjoined by Severus Alexander to hear his complaints and
execute his sentence. He could no longer take the life of a son
without incurring the guilt and punishment of murder; and the
pains of parricide, from which he had been excepted by the
Pompeian law, were finally inflicted by the justice of
Constantine. 111 The same protection was due to every period of
existence; and reason must applaud the humanity of Paulus, for
imputing the crime of murder to the father who strangles, or
starves, or abandons his new-born infant; or exposes him in a
public place to find the mercy which he himself had denied. But
the exposition of children was the prevailing and stubborn vice
of antiquity: it was sometimes prescribed, often permitted,
almost always practised with impunity, by the nations who never
entertained the Roman ideas of paternal power; and the dramatic
poets, who appeal to the human heart, represent with indifference
a popular custom which was palliated by the motives of economy
and compassion. 112 If the father could subdue his own feelings,
he might escape, though not the censure, at least the
chastisement, of the laws; and the Roman empire was stained with
the blood of infants, till such murders were included, by
Valentinian and his colleagues, in the letter and spirit of the
Cornelian law. The lessons of jurisprudence 113 and Christianity
had been insufficient to eradicate this inhuman practice, till
their gentle influence was fortified by the terrors of capital
punishment. 114

108 (return) [ See the gradual enlargement and security of the
filial peculium in the Institutes, (l. ii. tit. ix.,) the
Pandects, (l. xv. tit. i. l. xli. tit. i.,) and the Code, (l. iv.
tit. xxvi. xxvii.)]

109 (return) [ The examples of Erixo and Arius are related by
Seneca, (de Clementia, i. 14, 15,) the former with horror, the
latter with applause.]

110 (return) [ Quod latronis magis quam patris jure eum
interfecit, nam patria potestas in pietate debet non in
atrocitate consistere, (Marcian. Institut. l. xix. in Pandect. l.
xlviii. tit. ix. leg.5.)]

111 (return) [ The Pompeian and Cornelian laws de sicariis and
parricidis are repeated, or rather abridged, with the last
supplements of Alexander Severus, Constantine, and Valentinian,
in the Pandects (l. xlviii. tit. viii ix,) and Code, (l. ix. tit.
xvi. xvii.) See likewise the Theodosian Code, (l. ix. tit. xiv.
xv.,) with Godefroy’s Commentary, (tom. iii. p. 84—113) who pours
a flood of ancient and modern learning over these penal laws.]

112 (return) [ When the Chremes of Terence reproaches his wife
for not obeying his orders and exposing their infant, he speaks
like a father and a master, and silences the scruples of a
foolish woman. See Apuleius, (Metamorph. l. x. p. 337, edit.
Delphin.)]

113 (return) [ The opinion of the lawyers, and the discretion of
the magistrates, had introduced, in the time of Tacitus, some
legal restraints, which might support his contrast of the boni
mores of the Germans to the bonae leges alibi—that is to say, at
Rome, (de Moribus Germanorum, c. 19.) Tertullian (ad Nationes, l.
i. c. 15) refutes his own charges, and those of his brethren,
against the heathen jurisprudence.]

114 (return) [ The wise and humane sentence of the civilian Paul
(l. ii. Sententiarum in Pandect, 1. xxv. tit. iii. leg. 4) is
represented as a mere moral precept by Gerard Noodt, (Opp. tom.
i. in Julius Paulus, p. 567—558, and Amica Responsio, p.
591-606,) who maintains the opinion of Justus Lipsius, (Opp. tom.
ii. p. 409, ad Belgas. cent. i. epist. 85,) and as a positive
binding law by Bynkershoek, (de Jure occidendi Liberos, Opp. tom.
i. p. 318—340. Curae Secundae, p. 391—427.) In a learned out
angry controversy, the two friends deviated into the opposite
extremes.]

Experience has proved, that savages are the tyrants of the female
sex, and that the condition of women is usually softened by the
refinements of social life. In the hope of a robust progeny,
Lycurgus had delayed the season of marriage: it was fixed by Numa
at the tender age of twelve years, that the Roman husband might
educate to his will a pure and obedient virgin. 115 According to
the custom of antiquity, he bought his bride of her parents, and
she fulfilled the coemption by purchasing, with three pieces of
copper, a just introduction to his house and household deities. A
sacrifice of fruits was offered by the pontiffs in the presence
of ten witnesses; the contracting parties were seated on the same
sheep-skin; they tasted a salt cake of far or rice; and this
confarreation, 116 which denoted the ancient food of Italy,
served as an emblem of their mystic union of mind and body. But
this union on the side of the woman was rigorous and unequal; and
she renounced the name and worship of her father’s house, to
embrace a new servitude, decorated only by the title of adoption,
a fiction of the law, neither rational nor elegant, bestowed on
the mother of a family 117 (her proper appellation) the strange
characters of sister to her own children, and of daughter to her
husband or master, who was invested with the plenitude of
paternal power. By his judgment or caprice her behavior was
approved, or censured, or chastised; he exercised the
jurisdiction of life and death; and it was allowed, that in the
cases of adultery or drunkenness, 118 the sentence might be
properly inflicted. She acquired and inherited for the sole
profit of her lord; and so clearly was woman defined, not as a
person, but as a thing, that, if the original title were
deficient, she might be claimed, like other movables, by the use
and possession of an entire year. The inclination of the Roman
husband discharged or withheld the conjugal debt, so scrupulously
exacted by the Athenian and Jewish laws: 119 but as polygamy was
unknown, he could never admit to his bed a fairer or a more
favored partner.

115 (return) [ Dionys. Hal. l. ii. p. 92, 93. Plutarch, in Numa,
p. 140-141.]

116 (return) [ Among the winter frunenta, the triticum, or
bearded wheat; the siligo, or the unbearded; the far, adorea,
oryza, whose description perfectly tallies with the rice of Spain
and Italy. I adopt this identity on the credit of M. Paucton in
his useful and laborious Metrologie, (p. 517—529.)]

117 (return) [ Aulus Gellius (Noctes Atticae, xviii. 6) gives a
ridiculous definition of Aelius Melissus, Matrona, quae semel
materfamilias quae saepius peperit, as porcetra and scropha in
the sow kind. He then adds the genuine meaning, quae in
matrimonium vel in manum convenerat.]

118 (return) [ It was enough to have tasted wine, or to have
stolen the key of the cellar, (Plin. Hist. Nat. xiv. 14.)]

119 (return) [ Solon requires three payments per month. By the
Misna, a daily debt was imposed on an idle, vigorous, young
husband; twice a week on a citizen; once on a peasant; once in
thirty days on a camel-driver; once in six months on a seaman.
But the student or doctor was free from tribute; and no wife, if
she received a weekly sustenance, could sue for a divorce; for
one week a vow of abstinence was allowed. Polygamy divided,
without multiplying, the duties of the husband, (Selden, Uxor
Ebraica, l. iii. c 6, in his works, vol ii. p. 717—720.)]

After the Punic triumphs, the matrons of Rome aspired to the
common benefits of a free and opulent republic: their wishes were
gratified by the indulgence of fathers and lovers, and their
ambition was unsuccessfully resisted by the gravity of Cato the
Censor. 120 They declined the solemnities of the old nuptiais;
defeated the annual prescription by an absence of three days;
and, without losing their name or independence, subscribed the
liberal and definite terms of a marriage contract. Of their
private fortunes, they communicated the use, and secured the
property: the estates of a wife could neither be alienated nor
mortgaged by a prodigal husband; their mutual gifts were
prohibited by the jealousy of the laws; and the misconduct of
either party might afford, under another name, a future subject
for an action of theft. To this loose and voluntary compact,
religious and civil rights were no longer essential; and, between
persons of a similar rank, the apparent community of life was
allowed as sufficient evidence of their nuptials. The dignity of
marriage was restored by the Christians, who derived all
spiritual grace from the prayers of the faithful and the
benediction of the priest or bishop. The origin, validity, and
duties of the holy institution were regulated by the tradition of
the synagogue, the precepts of the gospel, and the canons of
general or provincial synods; 121 and the conscience of the
Christians was awed by the decrees and censures of their
ecclesiastical rulers. Yet the magistrates of Justinian were not
subject to the authority of the church: the emperor consulted the
unbelieving civilians of antiquity, and the choice of matrimonial
laws in the Code and Pandects, is directed by the earthly motives
of justice, policy, and the natural freedom of both sexes. 122

120 (return) [ On the Oppian law we may hear the mitigating
speech of Vaerius Flaccus, and the severe censorial oration of
the elder Cato, (Liv. xxxiv. l—8.) But we shall rather hear the
polished historian of the eighth, than the rough orators of the
sixth, century of Rome. The principles, and even the style, of
Cato are more accurately preserved by Aulus Gellius, (x. 23.)]

121 (return) [ For the system of Jewish and Catholic matrimony,
see Selden, (Uxor Ebraica, Opp. vol. ii. p. 529—860,) Bingham,
(Christian Antiquities, l. xxii.,) and Chardon, (Hist. des
Sacremens, tom. vi.)]

122 (return) [ The civil laws of marriage are exposed in the
Institutes, (l. i. tit. x.,) the Pandects, (l. xxiii. xxiv.
xxv.,) and the Code, (l. v.;) but as the title de ritu nuptiarum
is yet imperfect, we are obliged to explore the fragments of
Ulpian (tit. ix. p. 590, 591,) and the Collatio Legum Mosaicarum,
(tit. xvi. p. 790, 791,) with the notes of Pithaeus and
Schulting. They find in the Commentary of Servius (on the 1st
Georgia and the 4th Aeneid) two curious passages.]

Besides the agreement of the parties, the essence of every
rational contract, the Roman marriage required the previous
approbation of the parents. A father might be forced by some
recent laws to supply the wants of a mature daughter; but even
his insanity was not gradually allowed to supersede the necessity
of his consent. The causes of the dissolution of matrimony have
varied among the Romans; 123 but the most solemn sacrament, the
confarreation itself, might always be done away by rites of a
contrary tendency. In the first ages, the father of a family
might sell his children, and his wife was reckoned in the number
of his children: the domestic judge might pronounce the death of
the offender, or his mercy might expel her from his bed and
house; but the slavery of the wretched female was hopeless and
perpetual, unless he asserted for his own convenience the manly
prerogative of divorce. 1231 The warmest applause has been
lavished on the virtue of the Romans, who abstained from the
exercise of this tempting privilege above five hundred years: 124
but the same fact evinces the unequal terms of a connection in
which the slave was unable to renounce her tyrant, and the tyrant
was unwilling to relinquish his slave. When the Roman matrons
became the equal and voluntary companions of their lords, a new
jurisprudence was introduced, that marriage, like other
partnerships, might be dissolved by the abdication of one of the
associates. In three centuries of prosperity and corruption, this
principle was enlarged to frequent practice and pernicious abuse.

Passion, interest, or caprice, suggested daily motives for the
dissolution of marriage; a word, a sign, a message, a letter, the
mandate of a freedman, declared the separation; the most tender
of human connections was degraded to a transient society of
profit or pleasure. According to the various conditions of life,
both sexes alternately felt the disgrace and injury: an
inconstant spouse transferred her wealth to a new family,
abandoning a numerous, perhaps a spurious, progeny to the
paternal authority and care of her late husband; a beautiful
virgin might be dismissed to the world, old, indigent, and
friendless; but the reluctance of the Romans, when they were
pressed to marriage by Augustus, sufficiently marks, that the
prevailing institutions were least favorable to the males. A
specious theory is confuted by this free and perfect experiment,
which demonstrates, that the liberty of divorce does not
contribute to happiness and virtue. The facility of separation
would destroy all mutual confidence, and inflame every trifling
dispute: the minute difference between a husband and a stranger,
which might so easily be removed, might still more easily be
forgotten; and the matron, who in five years can submit to the
embraces of eight husbands, must cease to reverence the chastity
of her own person. 125

123 (return) [ According to Plutarch, (p. 57,) Romulus allowed
only three grounds of a divorce—drunkenness, adultery, and false
keys. Otherwise, the husband who abused his supremacy forfeited
half his goods to the wife, and half to the goddess Ceres, and
offered a sacrifice (with the remainder?) to the terrestrial
deities. This strange law was either imaginary or transient.]

1231 (return) [ Montesquieu relates and explains this fact in a
different marnes Esprit des Loix, l. xvi. c. 16.—G.]

124 (return) [ In the year of Rome 523, Spurius Carvilius Ruga
repudiated a fair, a good, but a barren, wife, (Dionysius Hal. l.
ii. p. 93. Plutarch, in Numa, p. 141; Valerius Maximus, l. ii. c.
1; Aulus Gellius, iv. 3.) He was questioned by the censors, and
hated by the people; but his divorce stood unimpeached in law.]

125 (return) [—Sic fiunt octo mariti Quinque per autumnos.
Juvenal, Satir. vi. 20.—A rapid succession, which may yet be
credible, as well as the non consulum numero, sed maritorum annos
suos computant, of Seneca, (de Beneficiis, iii. 16.) Jerom saw at
Rome a triumphant husband bury his twenty-first wife, who had
interred twenty-two of his less sturdy predecessors, (Opp. tom.
i. p. 90, ad Gerontiam.) But the ten husbands in a month of the
poet Martial, is an extravagant hyperbole, (l. 71. epigram 7.)]

Insufficient remedies followed with distant and tardy steps the
rapid progress of the evil. The ancient worship of the Romans
afforded a peculiar goddess to hear and reconcile the complaints
of a married life; but her epithet of Viriplaca, 126 the appeaser
of husbands, too clearly indicates on which side submission and
repentance were always expected. Every act of a citizen was
subject to the judgment of the censors; the first who used the
privilege of divorce assigned, at their command, the motives of
his conduct; 127 and a senator was expelled for dismissing his
virgin spouse without the knowledge or advice of his friends.
Whenever an action was instituted for the recovery of a marriage
portion, the proetor, as the guardian of equity, examined the
cause and the characters, and gently inclined the scale in favor
of the guiltless and injured party. Augustus, who united the
powers of both magistrates, adopted their different modes of
repressing or chastising the license of divorce. 128 The presence
of seven Roman witnesses was required for the validity of this
solemn and deliberate act: if any adequate provocation had been
given by the husband, instead of the delay of two years, he was
compelled to refund immediately, or in the space of six months;
but if he could arraign the manners of his wife, her guilt or
levity was expiated by the loss of the sixth or eighth part of
her marriage portion. The Christian princes were the first who
specified the just causes of a private divorce; their
institutions, from Constantine to Justinian, appear to fluctuate
between the custom of the empire and the wishes of the church,
129 and the author of the Novels too frequently reforms the
jurisprudence of the Code and Pandects. In the most rigorous
laws, a wife was condemned to support a gamester, a drunkard, or
a libertine, unless he were guilty of homicide, poison, or
sacrilege, in which cases the marriage, as it should seem, might
have been dissolved by the hand of the executioner. But the
sacred right of the husband was invariably maintained, to deliver
his name and family from the disgrace of adultery: the list of
mortal sins, either male or female, was curtailed and enlarged by
successive regulations, and the obstacles of incurable impotence,
long absence, and monastic profession, were allowed to rescind
the matrimonial obligation. Whoever transgressed the permission
of the law, was subject to various and heavy penalties. The woman
was stripped of her wealth and ornaments, without excepting the
bodkin of her hair: if the man introduced a new bride into his
bed, her fortune might be lawfully seized by the vengeance of his
exiled wife. Forfeiture was sometimes commuted to a fine; the
fine was sometimes aggravated by transportation to an island, or
imprisonment in a monastery; the injured party was released from
the bonds of marriage; but the offender, during life, or a term
of years, was disabled from the repetition of nuptials. The
successor of Justinian yielded to the prayers of his unhappy
subjects, and restored the liberty of divorce by mutual consent:
the civilians were unanimous, 130 the theologians were divided,
131 and the ambiguous word, which contains the precept of Christ,
is flexible to any interpretation that the wisdom of a legislator
can demand.

126 (return) [ Sacellum Viriplacae, (Valerius Maximus, l. ii. c.
1,) in the Palatine region, appears in the time of Theodosius, in
the description of Rome by Publius Victor.]

127 (return) [ Valerius Maximus, l. ii. c. 9. With some propriety
he judges divorce more criminal than celibacy: illo namque
conjugalia sacre spreta tantum, hoc etiam injuriose tractata.]

128 (return) [ See the laws of Augustus and his successors, in
Heineccius, ad Legem Papiam-Poppaeam, c. 19, in Opp. tom. vi. P.
i. p. 323—333.]

129 (return) [ Aliae sunt leges Caesarum, aliae Christi; aliud
Papinianus, aliud Paulus nocter praecipit, (Jerom. tom. i. p.
198. Selden, Uxor Ebraica l. iii. c. 31 p. 847—853.)]

130 (return) [ The Institutes are silent; but we may consult the
Codes of Theodosius (l. iii. tit. xvi., with Godefroy’s
Commentary, tom. i. p. 310—315) and Justinian, (l. v. tit.
xvii.,) the Pandects (l. xxiv. tit. ii.) and the Novels, (xxii.
cxvii. cxxvii. cxxxiv. cxl.) Justinian fluctuated to the last
between civil and ecclesiastical law.]

131 (return) [ In pure Greek, it is not a common word; nor can
the proper meaning, fornication, be strictly applied to
matrimonial sin. In a figurative sense, how far, and to what
offences, may it be extended? Did Christ speak the Rabbinical or
Syriac tongue? Of what original word is the translation? How
variously is that Greek word translated in the versions ancient
and modern! There are two (Mark, x. 11, Luke, xvi. 18) to one
(Matthew, xix. 9) that such ground of divorce was not excepted by
Jesus. Some critics have presumed to think, by an evasive answer,
he avoided the giving offence either to the school of Sammai or
to that of Hillel, (Selden, Uxor Ebraica, l. iii. c. 18—22, 28,
31.) * Note: But these had nothing to do with the question of a
divorce made by judicial authority.—Hugo.]

The freedom of love and marriage was restrained among the Romans
by natural and civil impediments. An instinct, almost innate and
universal, appears to prohibit the incestuous commerce 132 of
parents and children in the infinite series of ascending and
descending generations. Concerning the oblique and collateral
branches, nature is indifferent, reason mute, and custom various
and arbitrary. In Egypt, the marriage of brothers and sisters was
admitted without scruple or exception: a Spartan might espouse
the daughter of his father, an Athenian, that of his mother; and
the nuptials of an uncle with his niece were applauded at Athens
as a happy union of the dearest relations. The profane lawgivers
of Rome were never tempted by interest or superstition to
multiply the forbidden degrees: but they inflexibly condemned the
marriage of sisters and brothers, hesitated whether first cousins
should be touched by the same interdict; revered the parental
character of aunts and uncles, 1321 and treated affinity and
adoption as a just imitation of the ties of blood. According to
the proud maxims of the republic, a legal marriage could only be
contracted by free citizens; an honorable, at least an ingenuous
birth, was required for the spouse of a senator: but the blood of
kings could never mingle in legitimate nuptials with the blood of
a Roman; and the name of Stranger degraded Cleopatra and
Berenice, 133 to live the concubines of Mark Antony and Titus.
134 This appellation, indeed, so injurious to the majesty, cannot
without indulgence be applied to the manners, of these Oriental
queens. A concubine, in the strict sense of the civilians, was a
woman of servile or plebeian extraction, the sole and faithful
companion of a Roman citizen, who continued in a state of
celibacy. Her modest station, below the honors of a wife, above
the infamy of a prostitute, was acknowledged and approved by the
laws: from the age of Augustus to the tenth century, the use of
this secondary marriage prevailed both in the West and East; and
the humble virtues of a concubine were often preferred to the
pomp and insolence of a noble matron. In this connection, the two
Antonines, the best of princes and of men, enjoyed the comforts
of domestic love: the example was imitated by many citizens
impatient of celibacy, but regardful of their families. If at any
time they desired to legitimate their natural children, the
conversion was instantly performed by the celebration of their
nuptials with a partner whose faithfulness and fidelity they had
already tried. 1341 By this epithet of natural, the offspring of
the concubine were distinguished from the spurious brood of
adultery, prostitution, and incest, to whom Justinian reluctantly
grants the necessary aliments of life; and these natural children
alone were capable of succeeding to a sixth part of the
inheritance of their reputed father. According to the rigor of
law, bastards were entitled only to the name and condition of
their mother, from whom they might derive the character of a
slave, a stranger, or a citizen. The outcasts of every family
were adopted without reproach as the children of the state. 135
1351

132 (return) [ The principles of the Roman jurisprudence are
exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and
manners of the different nations of antiquity concerning
forbidden degrees, &c., are copiously explained by Dr. Taylor in
his Elements of Civil Law, (p. 108, 314—339,) a work of amusing,
though various reading; but which cannot be praised for
philosophical precision.]

1321 (return) [ According to the earlier law, (Gaii Instit. p.
27,) a man might marry his niece on the brother’s, not on the
sister’s, side. The emperor Claudius set the example of the
former. In the Institutes, this distinction was abolished and
both declared illegal.—M.]

133 (return) [ When her father Agrippa died, (A.D. 44,) Berenice
was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l.
xix. c. 9, p. 952, edit. Havercamp.) She was therefore above
fifty years old when Titus (A.D. 79) invitus invitam invisit.
This date would not have adorned the tragedy or pastoral of the
tender Racine.]

134 (return) [ The Aegyptia conjux of Virgil (Aeneid, viii. 688)
seems to be numbered among the monsters who warred with Mark
Antony against Augustus, the senate, and the gods of Italy.]

1341 (return) [ The Edict of Constantine first conferred this
right; for Augustus had prohibited the taking as a concubine a
woman who might be taken as a wife; and if marriage took place
afterwards, this marriage made no change in the rights of the
children born before it; recourse was then had to adoption,
properly called arrogation.—G.]

135 (return) [ The humble but legal rights of concubines and
natural children are stated in the Institutes, (l. i. tit. x.,)
the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and
the Novels, (lxxiv. lxxxix.) The researches of Heineccius and
Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164-175.
Opere Posthume, p. 108—158) illustrate this interesting and
domestic subject.]

1351 (return) [ See, however, the two fragments of laws in the
newly discovered extracts from the Theodosian Code, published by
M. A. Peyron, at Turin. By the first law of Constantine, the
legitimate offspring could alone inherit; where there were no
near legitimate relatives, the inheritance went to the fiscus.
The son of a certain Licinianus, who had inherited his father’s
property under the supposition that he was legitimate, and had
been promoted to a place of dignity, was to be degraded, his
property confiscated, himself punished with stripes and
imprisonment. By the second, all persons, even of the highest
rank, senators, perfectissimi, decemvirs, were to be declared
infamous, and out of the protection of the Roman law, if born ex
ancilla, vel ancillae filia, vel liberta, vel libertae filia,
sive Romana facta, seu Latina, vel scaenicae filia, vel ex
tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel
lenonis, aut arenarii filia, vel quae mercimoniis publicis
praefuit. Whatever a fond father had conferred on such children
was revoked, and either restored to the legitimate children, or
confiscated to the state; the mothers, who were guilty of thus
poisoning the minds of the fathers, were to be put to the torture
(tormentis subici jubemus.) The unfortunate son of Licinianus, it
appears from this second law, having fled, had been taken, and
was ordered to be kept in chains to work in the Gynaeceum at
Carthage. Cod. Theodor ab. A. Person, 87—90.—M.]