70

Rescission of contracts. Postliminium

The protection of minors, mentioned above, was an interesting feature of Roman Law but must often have been very embarrassing in practice. Whatever business a minor had conducted, a sale, a purchase, a loan, a pledge, acceptance of an inheritance, agreement to an arbitration, etc., if it was shewn that he had been in any way deceived or overreached or had suffered from want of due vigilance, application might be made to the Court, to have the matter rescinded, provided he had not acted fraudulently and there was no other remedy. The Court heard the parties, and if it found the claim just, put the parties back, so far as possible, into their old positions. This was called in integrum restitutio. The application had to be made within (originally) one year after the minor's completing his twenty-fifth year, and would be rejected if after this age he had in any way approved his former act or default. Justinian extended the period to four years.

A similar reinstatement was sometimes granted to persons of full age, if it were shewn that they had suffered serious loss owing to absence on the public service, or to captivity, or fraud, or intimidation. Or the reverse might be the case: similar absence of others might have prevented plaintiff from bringing a suit or serving a notice within the proper time reinstatement might then sometimes be obtained.

A person, who had been taken captive by the enemy and returned home with the intention of remaining, was held to re-enter at once into his old position, his affairs having been in the meantime in a state of suspense. This was called the law of postliminium (reverter). His own marriage was however dissolved by his captivity, as if he were dead, though his relation to his children was only suspended till it was known whether he would return.

Slaves and other chattels taken by the enemy, if brought back into Roman territory, similarly reverted to their former owners subject to any earlier claims which attached to them. Anyone who ransomed them from the enemy had a lien for the amount of the ransom.

MARRIAGE was often preceded by betrothal, that is by a solemn mutual promise. The consent of the parties was required, but, if the woman was under her father's power, she was presumed to agree to his act unless she plainly dissented. The age of seven was deemed necessary for consent. The restrictions on marriage applied to betrothal, and a betrothed person was for some purposes treated in law as if married. Betrothal was usually accompanied by gifts, as earnest from or on behalf of each party to the other. If the receiver died, the giver had a right to its return, unless a kiss had passed between them, when the half only could be recovered (336). Breach of the contract without good cause, such as lewd conduct, diversity of religion, etc., previously unknown to the other, at one time involved a penalty of fourfold (i.e. the earnest

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

72

Prohibited marriages. Dowry

step-daughter of the other, and forbad the marriage of brothers and sisters by adoption so long only as they remained in the same family. Marriage with the daughter of a sister by adoption was legal.

Other prohibitions were based on considerations outside of the family tie. A guardian or curator was prohibited by Severus and later Emperors from marrying his ward, if under twenty-six years of age, either to himself or his son, unless special permission was obtained. Provincials were forbidden by Valentinian (c. 373) to marry barbarians under threat of capital punishment. Jews and Christians were forbidden by Theodosius (388) to intermarry, the act being punished as adultery. Justinian (530) "following the sacred canon " forbad presbyters, deacons, and sub-deacons to marry at all; if they did, their children were to be treated as born of incestuous connexion.

Senators and their descendants were forbidden by Augustus and by Marcus Aurelius to marry freed persons or actors or actresses or their children. Constantine (336) forbad any person of high rank or official position in towns to marry, whether after concubinage or not, freed women or actresses or stall-keepers or their daughters or others of low condition, mere poverty not being regarded as such (Valentinian 454). Justin, in consequence of his nephew Justinian's marriage with Theodora, removed this prohibition, if the woman had ceased to practise her profession, and gave to his law retrospective effect from his accession. Justinian relaxed the rule still further, and eventually (542) enabled all persons to marry any free woman, but in the case of dignitaries only by regular marriage settlement: others could marry either by settlement or by marital affection without settlement.

Forbidden marriages were declared to be no marriages, dowry and marriage gift were forfeited to the Crown, the children were not even to be deemed natural children; the parties were incapable of giving by will to any outsiders or to each other. Incestuous marriage, by Justinian's latest law (535), was punished by exile and forfeiture of all property, and in the case of persons of low rank by personal chastisement. Any children by a previous lawful marriage became independent, took their father's property, and had to support him.

DOWRY. A woman's dowry was a contribution from herself or her relatives or others to the expenses of the married life, placed under the charge and at the disposal of the husband, and, although theoretically his property, to be accounted for by him on the dissolution of the marriage to the donor or the wife. It presumed a lawful marriage: it could be given either before or after, but if given before it took effect only on marriage. It was governed by customary rules and often by special agreements consistent with its general principles. From the time of Constantine a betrothed husband's or wife's gift made in view of an intended marriage was revocable by the donor, if the donee or the wife's father was the cause of the marriage not taking place. And a gift from

the husband, which was now a usual incident, was treated as balancing the dowry and gradually subjected to like treatment (468). As the dowry could be increased by the wife or others during the marriage (not withstanding the rule against gifts between husband and wife), so also could the husband's antenuptial gift, and, if none such had been made, he was allowed to make one not exceeding the value of the dowry, and any agreements which had been made for a marriage settlement could be modified accordingly. The amount of the settlement could be reduced by mutual consent, unless there were children of the marriage, for which the settlement was made (527). Justinian enacted (529) that all agreements for the share to be taken by the wife in her husband's gift after his death were to apply to the share to be taken by the husband in the wife's dowry on her death, the larger share to be reduced to the smaller, and altered the phrase ante nuptias donatio to propter nuptias donatio, that it might fit the extended character (531). In 539 he enacted that the dowry and the marriage gift should be equal, and that in all cases of dissolution of the marriage, whether either party married again or not, the amount coming to him or her from the settlements of the marriage or former marriage should pass as property to the children of the marriage and only the usufruct to the parent; and that was to be subject to the support of the children. In 548 he enacted that either party abstaining from a second marriage should as a reward share with the children in the property of the dowry or nuptial gift, besides enjoying the usufruct of the whole and further he required that the husband or his friends should (as in other cases of gift) record in court the amount of his marriage gift if over 500 solidi (about equal to £500) under penalty for omission of losing all share in the dowry.

A woman's claim for her dowry had since 529 (and still more since 539) precedence of almost all other claims on her husband's property; and if her husband was insolvent she could maintain her claim on the settled property even during his life against his creditors, and against her father or mother or other donor unless they had expressly stipulated for its return.

Any money or securities or other property which the wife had beside her dowry (parapherna) were not touched by any of these agreements or statutes, but remained entirely the property of the wife and subject to her claim and disposition. The fact was sometimes mentioned in the dowry deed, and the husband and his property were answerable for the parapherna so far as they were under his care. Justinian (530) allowed him to sue for them on his wife's behalf, and to use the interest for their joint purposes, but the capital he was to deal with according to her wish.

SECOND MARRIAGES were the subject of much change of opinion, in the minds of the Emperors at least, between Augustus and Justinian.

Under the former celibacy was not merely discouraged, but visited with the penalty of incapacity to take an inheritance or legacy, if the man was under sixty or the woman under fifty years of age. Constantine appears to have been the first to modify this legislation. No doubt the declension of the Roman population had ceased to have the importance which led to Augustus' stringent enactments, now that the Empire contained a wider field for supplying recruits for the army. And the Christian Church, coming by the fourth century to count the single life nobler than the married, and encouraging anchorite and monastic asceticism, looked on second marriages with increasing dislike and reprobation. The Emperors in the fourth century, though requiring the father's consent to the re-marriage of a woman under twenty-five years of age, and severe in condemnation and punishment of any woman who married again within ten months (in 381 extended to one year) from the death of her husband, in other cases interfered only to secure the interest of the children of the former marriage. Justinian dealt with the subject in 536 and 539. As regards any property derived from the former husband or wife the party marrying again, as already mentioned, retained only the usufruct, the children of the former marriage being entitled to the property in equal shares. As regards property not derived from the former partner, the party re-marrying was disabled from giving by dowry or otherwise or leaving to the second wife or husband more than the smallest share of it which any child of the former marriage would get. Under the law any excess was to be divided equally between the said children if not "ungrateful."

If property was left to a person on condition of his or her not marrying again, it used to be the practice to require an oath for the observance of the condition before the property was transferred. Justinian, in order to prevent frequent perjury and secure the execution of testator's intention, allowed the legatee, after a year for reflexion, to have a transfer of the bequest, or, if it be money, the payment of interest on it. Security had to be given, or at least an oath to be taken, by the recipient that he would, if the condition were broken, restore the property transferred with the profits or interest. His or her own property was tacitly pledged by the statute (536).

By second marriage a mother lost the right, which the law usually gave her, of educating her former children, and the guardianship, if she had it, and lost all dignities and privileges derived from her former husband.

DIVORCE. Until the year 542 marriage could be dissolved in the life of the parties by mutual consent without special cause and with only such consequences as were agreed between them. In that year Justinian forbad any such divorce except in order to lead a life of chastity. For breach of this law he enacted in 556 that both parties were to be sent into a monastery for the rest of their lives; of their property one-third