THE DIGEST OR PANDECTS. BOOK XXIII.

TITLE I. CONCERNING BETROTHALS.

1. Florentinus, Institutes, Book III.

A betrothal is the mention and promise of a marriage to be celebrated hereafter.

2. Ulpianus, On Betrothals.

"Betrothal" is derived from the word "promise," for it is customary among the ancients to stipulate and promise wives to one another.

3. Florentinus, Institutes, Book III.

From this source the term betrothed, applicable to both sexes, is derived.

4. Ulpianus, On Sabinus, Book XXXV.

Mere consent is sufficient to contract a betrothal.

(1) It is settled that parties who are absent can be betrothed, and this takes place every day.

5. Pomponius, On Sabinus, Book XVI.

Provided that the absent parties are aware of the betrothal, or that they subsequently ratify it.

6. Ulpianus, On Sabinus, Book XXXVI.

If the guardians of a girl send a notice of the termination of a betrothal, I do not think that this will be sufficient to destroy the expectation of marriage, any more than it would be sufficient, of itself, to establish it; unless all this is done with the consent of the girl.

7. Paulus, On the Edict, Book XXXV.

In case of a betrothal, it makes no difference whether witnesses are present, or whether the party makes a verbal promise.

(1) In betrothals, the acquiescence of those persons who must consent to the marriage is required. Julianus says that the father is always understood to consent, unless it is clear that he refuses to do so.

8. Gaius, On the Provincial Edict, Book XI.

It is perfectly evident that insanity is an impediment to betrothal, but if it occurs afterwards, it will not annul it.

9. Ulpianus, On the Edict, Book XXXV.

Inquiry is made by Julianus whether a marriage contracted before the twelfth year takes the place of a betrothal. I have always approved the opinion of Labeo, who held that if a betrothal had preceded a marriage, it would still continue to exist, even after the girl had begun to live with her husband; but if it had not been contracted previously, and the girl had been brought to the house of her husband, the betrothal could not be considered to have been made. Papinianus also concurs in this opinion.

10. The Same, Disputations, Book III.

Where a daughter is under the control of her father, he can send a notice to her affianced, annulling the betrothal; but if she has been emancipated, he can neither do this, nor bring an action for property given by way of dowry, because the daughter herself, by marriage, constitutes the dowry, and extinguishes the right to recover the same which results from the fact that the marriage has not been consummated; unless it may suggest that the father gave the dowry in behalf of his emancipated daughter, under the condition that if he should not consent to the marriage, and, indeed, whether the marriage was contracted or not, he could recover what he gave; he will then be entitled to a personal action for its recovery.

11. Julianus, Digest, Book XVI.

A betrothal, like a marriage, is. made with the consent of the contracting parties, and therefore, as in the case of marriage, a son under paternal control must agree to it.

12. Ulpianus, On Betrothals.

A girl who evidently does not resist the will of her father is understood to give her consent. A daughter is only permitted to refuse to consent to her father's wishes, where he selects someone for her husband who is unworthy on account of his habits or who is of infamous character.

13. Paulus, On the Edict, Book V.

Where a son under paternal control refuses his consent, a betrothal cannot take place, so far as he is concerned.

14. Modestinus, Differences, Book IV.

In contracting a betrothal, there is no limit to the age of the parties, as is the case in marriage. Wherefore, a betrothal can be made at a very early age, provided what is being done is understood by both persons, that is to say, where they are not under seven years of age.¹

¹ A betrothal contracted in behalf of a female less than seven years old, and said to be made in cunabulis (in the cradle) or a marriage celebrated in consequence of it, was void by the Canon Law: "Desponsationes hujusmodi nullæ sint quæ in cunabulis fiunt." (Decretalium Gregorii Papæ IX, Compilatio, IV, II, 4.) These engagements were divided by ecclesiastical authorities into two classes: sponsalia per verba de præsenti, which at once constituted an union scarcely less indissoluble than that which had been actually consummated by sexual intercourse; and sponsalia per verba de futuro, whereby a promise was given to marry at some future time. This distinction, however, was not recognized until the twelfth century. The former contract was considered so binding that, even if before physical union had taken place the woman should marry another man, and the marriage be consummated, she must be returned to him to whom she had previously been betrothed. "Si inter virum & mulierem consensus interveniat de præsenti, sive sit juramentum interpositum, sive non, non licet alteri ad alia vota transire; quod si fecerit secundum matrimonium, de facto contractual (etiamsi sit carnalia copula subsecuta) separari debet, & primum in sua firmitate manere." (Decretalium Gregorii Papæ IX, Compilatio IV, I, 31.) The classification authorized by the Church was adopted by Alfonso X. (Las Siete Partidas IV, I, 2.)

In Sweden when a betrothal has been made in compliance with the legal formalities, neither party can withdraw, but both may agree to do so; and if they state their intention before the proper official, the contract will be cancelled. A promise to marry is void unless made in the presence of a giftoman or "matrimonial guardian," unless both parties commit it to writing, and the giftoman confirms it. In other respects, a Swedish betrothal is considered almost as inviolable as one contracted under the Canon Law. "Faster man sig tvenne; böte trettio daler, och vare den första fästning gill, ändå att han den senare hävdat." (Sveriges Rikes Lag, III, 5.)

Anyone may contract a betrothal in Austria, if no lawful impediment exists; and no legal responsibility whatever attaches to those who make it, so far as either its negotiation or its annulment is concerned. "Ein eheverlöbniss oder ein vorläufiges Versprechen sich zu ehelichen unter was fur Umständer oder Bedingungen es gegeben oder erhalten worden, zieht keine rechtlichen Verbindlichkeit nach sich, weder zur Schliessung der Ehe selbst, noch zur Leistung desjenigen, was auf der Fall der Rücktrilles bedungen worden ist." (Allgemeines Bürgerliches Gesetzbuch, Arts. 45, 46, 47.)

As a rule, under the French Code, a mere promise to marry is of no force or effect, but if seduction follows in consequence, or any other injury is sustained by the aggrieved party, an action for damages will lie. (Code Civil de France, Art. 1382, 14, 15.)

Under Spanish law, all liability for breach of contract of marriage is specifically excluded, and the courts are forbidden to take cognizance of cases founded upon claims of this description. Where, however, a betrothal has taken place between persons of legal capacity, or with the consent of those to whose authority they are subject, and the contract is repudiated by one of them without just cause, he will be compelled to make good to the other all expenses incurred in consequence. "Las esponsales de futuro no producen obligatión de contraer matrimonio. Ningun Tribunál admitirá demanda en que se pretenda su cumplimiento." (Código Civil de España, Arts. 43, 44.)

Betrothals, and ante-nuptial agreements arising from them, have been the subject of much legislation in Portugal, are of no validity unless publicly executed and acknowledged, and cannot be revoked or altered after marriage. The parties may provide for community or separation of property; for the bestowal of a dowry or its omission; or the contract may be simply executed in accordance with the customs of the Kingdom. The woman may reserve for her own individual use a sum not exceeding one-third of the net income of her estate, where a community of goods is agreed upon. "Estas convençoes naõ terão validade, se naõ forem celebradas em escritura publica." "As convencoes ante-nupciaes não podem ser revogadas nem alteradas por nova convencão, depois da celebracão do casamento." (Código Civil Portuguêz, Arts 1097, 1105.)

The Italian law resembles the French in its application where seduction is involved, and the Spanish in its provision for the reimbursement of expenses to the injured party. The demand for this, however, must be made within a year after the time when the promise should have been fulfilled. "La promessa scambievole di futuro matrimonio non produce obbligazione legale di contrario nè di esequire ciò che si fosse cenvenuto pel caso di non adempimento della medesima." "La demanda però non e piu amissibile dopo un anno dal giorno in cui la promusa doveva essere eseguita." (Codice Civile del Regno d'ltalia, Arts. 53, 54.)

In the United States, the facility with which promises to marry may be made and broken are, as is well known, the prolific cause of much vexatious litigation, frequently conducive to blackmail, extortion, perjury, and a scandalous perversion of justice. — ED.

15. The Same, Selected Cases.

A guardian cannot himself marry his own ward, nor can he unite her in marriage with his son. It must be noted, however, that although we are treating of marriage, this rule also applies to betrothals.

16. Ulpianus, On the Lex Julia et Papia, Book III.

A Rescript of the Emperors Antoninus and Commodus which forbade senators to marry certain persons, did not mention anything with reference to betrothals; still, it is properly held that betrothals made under such conditions are void by operation of law; in order to supply what is lacking in the Rescript.

17. Gaius, On the Lex Julia et Papia, Book I.

Just and necessary reasons often exist for protracting a betrothal, for one, two, three, or four years, and even for a longer time; as, for instance, the illness of either of the parties, the death of their parents, accusations of capital crimes, or long journeys made through necessity.

18. Ulpianus, On the Edict, Book VI.

It makes little difference, in the contracting of betrothals, whether this is done by the parties in the presence of one another, or by means of an intermediary, or in writing, or in some other way; and very frequently the conditions of marriages are settled by the agency of others than those chiefly interested.

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TITLE II. CONCERNING THE CEREMONY OF MARRIAGE.

1. Modestinus, Rules, Book I.

Marriage is the union of a man and a woman, forming an association during their entire lives, and involving the common enjoyment of divine and human privileges.

2. Paulus, On the Edict, Book XXXV.

Marriage cannot take place unless all the parties consent, that is to say those who are united, as well as those under whose authority they are.¹

¹ "Consensus non cencubitus facit matrimonium; et consentire non possunt ante annos nubiles." — ED.

3. The Same, On Sabinus, Book I.

If I have a grandson derived from one of my sons, and a granddaughter derived from another, under my control, Pomponius says that my consent will be sufficient to enable marriage to be contracted between them; which is correct.

4. Pomponius, On Sabinus, Book III.

Where a girl under twelve years of age is married, she will not be a lawful wife until she has reached that age while living with her husband.

5. The Same, On Sabinus, Book IV.

It is settled that a woman can be married to a man who is absent either by means of a letter, or through a messenger, if she is afterwards conducted to his house. If she remains absent, however, she cannot be married, either by letter or by messenger; for she must be brought, not to her own house, but to that of her husband, since this is, as it were, the domicile of matrimony.

6. Ulpianus, On Sabinus, Book XXXV.

Finally Cinna says that, where a man marries a woman who is absent and then, returning from a banquet on the other side of the Tiber, loses his life; it is held that his wife should mourn for him.

7. Paulus, On the Lex Falcidia.

Therefore, it could happen in this instance that a virgin might be entitled to her dowry and an action to recover the same.

8. Pomponius, On Sabinus, Book V.

A freedman cannot marry either his mother or his sister, who has been liberated from slavery, because the rule forbidding this is founded upon good morals and not upon law.

9. Ulpianus, On Sabinus, Book XXVI.

Where a grandfather is insane and his grandson wishes to marry, the consent of his father will be absolutely necessary; but if his father should be insane, the consent of his grandfather will be sufficient, if the latter is of sound mind.

(1) A son can marry if his father is in the hands of the enemy, and does not return within three years.

10. Paulus, On the Edict, Book XXXV.

It is doubtful what course to pursue where the father is absent, and it is not known where he is, or even whether he is still alive. If three years should elapse from the time when the father's whereabouts or whether he was living began to be unknown, his children of both sexes will not be prevented from legally contracting marriage.

11. Julianus, Digest, Book LXIII.

Where the child of a man who is in captivity or who is absent marries before the three years of captivity or absence have elapsed, I think that the marriage will be legally contracted; provided that either the son or the daughter should marry a person whose condition will certainly not be offensive to the father.

12. Ulpianus, On Sabinus, Book XXVI.

If I have a wife, and, after having been repudiated by me, she marries Seius, whom I subsequently adopt, the marriage is not incestuous.

(1) A legal marriage cannot be contracted between me and a woman betrothed to my father, although she cannot properly be said to be my stepmother.

(2) On the other hand, a woman who is betrothed to me cannot marry my father, although she cannot properly be called his daughter-in-law.

(3) If my wife, after having been divorced, should marry another man, and have a daughter by him, Julianus thinks that the latter is not my stepdaughter, still, I must not marry her.

(4) I can marry the daughter of my adopted sister, for she is not my relative, as no one becomes an uncle by adoption. Those relationships are only formed by adoption which are legitimate, that is to say, which possess the rights of agnation. On the same principle, I can marry the sister of my adoptive father, if she was not born of the same mother as he.

13. The Same, On Sabinus, Book XXXV.

Where a patroness is so degraded that she even thinks that marriage with her freedman is honorable, it should not be prohibited by a judge to whom application is made to prevent it.

14. Paulus, On the Edict, Book XXXV.

Where an adopted son is emancipated, he cannot marry the widow of his adoptive father, because she occupies the position of a stepmother.

(1) The same rule applies where anyone adopts a son, for he cannot marry his widow, as she occupies the position of a daughter-in-law even after the emancipation of his son.

(2) Servile relationships must also be taken into consideration under this head; hence a slave who is manumitted cannot marry his mother, and the same rule applies to the case of a sister and her daughter. On the other hand, it must be said that a father cannot marry his daughter, if both of them have been manumitted, even though it is doubtful whether the alleged father is her parent. Wherefore, a natural father cannot legally marry his daughter born out of wedlock, since, in contracting marriage, natural law and modesty must be considered, for it is contrary to modesty for a man to marry his own daughter.

(3) The same rule that is applicable to servile blood-relationship must also be observed in cases of servile affinity; as, for example, I cannot marry a woman with whom my father lived in concubinage, for she occupies, to some extent, the position of a stepmother; and, on the other hand, a father cannot marry a woman who lived in concubinage with his son, because she occupies, as it were, the position of a daughter-in-law. Neither can anyone marry the mother of a woman with whom he lived in slavery, since she is, so to speak, his mother-in-law; and as servile cognation is recognized, why should not affinity be governed by the same rule? Where any doubt exists, it is always better and more decent to avoid marriages of this kind.

(4) Now let us see what is the meaning of the terms stepmother, stepdaughter, mother-in-law, and daughter-in-law, in order that we may ascertain whom it is illegal to marry. Certain authorities understand a stepmother to be the wife of the father, a daughter-in-law the wife of the son, and a stepdaughter the child of the wife by a former husband.

So far, however, as the present subject is concerned, it is more correct to hold that a man cannot marry the wife of his grandfather, or his great-grandmother, therefore there are two, or even several, stepmothers whom he cannot marry. This is not to be wondered at, for an adopted son cannot marry the widow of his natural, or adoptive father. Where his father has had several wives, he cannot marry any of them. Therefore the term "mother-in-law" not only applies to the mother of my wife, but also to her grandmother, and great-grandmother, and I cannot marry either of them.

The term "daughter-in-law" is not only applicable to the wife of a son, but also to the wife of a grandson, and great-grandson, although certain authorities designate these as grand-daughters-in-law.

A stepdaughter is understood to be not only the daughter of my wife, but also to refer to her granddaughter and great-granddaughter; and I can marry none of them. Augustus decided that I cannot marry a woman whose mother has been betrothed to me, for she has occupied the position of my mother-in-law.

15. Papinianus, Opinions, Book IV.

A man cannot marry the former wife of his stepson, nor can a woman marry a man who was formerly the husband of her stepdaughter.

16. Paulus, On the Edict, Book XXXV.

It is provided by a Rescript of the Divine Marcus that, if the daughter of a senator should marry a freedman, the marriage will be void; and this was followed by a Decree of the Senate to the same effect.

(1) A son should consent to the marriage of the grandson, but where the granddaughter is to be married, the consent and authority of the grandfather will be sufficient.

(2) Insanity prevents the contraction of marriage, because consent is necessary; but it does not annul it after it has been legally contracted.

17. Gaius, On the Provincial Edict, Book XL.

Where the relationship of brother and sister has been acquired by adoption, it will be an impediment to their marriage while the adoption lasts; therefore I can marry a girl whom my father adopted and afterwards emancipated. We can also be united in matrimony if I have been emancipated, and my father has retained her under his control.

(1) Hence, a man wishing to adopt his son-in-law was advised to emancipate his daughter; and, in like manner, one who wishes to adopt his daughter-in-law is advised to emancipate his son.

(2) We also forbid anyone to marry his paternal or maternal aunt, or his paternal or maternal great-aunt; although the former are related to him in the fourth degree. We also forbid a man to marry his paternal aunt and great-aunt even though they are connected with us by adoption.

18. Julianus, Digest, Book XVI.

Marriage contracted between these persons is not legal, unless the relatives consent to it.

19. Marcianus, Institutes, Book XVI.

In the Thirty-fifth Section of the Lex Julia, persons who wrongfully prevent their children, who are subject to their authority, to marry, or who refuse to endow them, are compelled by the proconsuls or governors of provinces, under a Constitution of the Divine Severus and Antoninus, to marry or endow their said children. They are also held to prevent their marriage where they do not seek to promote it.

20. Paulus, On the Rescript of the Divine Severus and Commodus.

It must be remembered that it is not one of the functions of a curator to see that his ward is married, or not; because his duties only relate to the transaction of business. This Severus and Antoninus stated in a Rescript in the following words: "It is the duty of a curator to manage the affairs of his ward, but the ward can marry, or not, as she pleases."

21. Terentius Clemens, On the Lex Julia et Papia, Book III.

A son under paternal control cannot be forced to marry.

22. Celsus, Digest, Book XV.

Where a son, being compelled by his father, marries a woman whom he would not have married if he had been left to the exercise of his own free will, the marriage will, nevertheless, legally be contracted; because it was not solemnized against the consent of the parties, and the son is held to have preferred to take this course.

23. The Same, Digest, Book XXX.

It is provided by the Lex Papia that all freeborn men, except senators and their children, can marry freedwomen.

24. Modestinus, Rules, Book I.

Where a man lives with a free woman, it is not considered concubinage but genuine matrimony, if she does not acquire gain by means of her body.

25. The Same, Rules, Book II.

A son who has been emancipated can marry without the consent of his father, and any son that he may have will be his heir.

26. The Same, Opinions, Book V.

Modestinus says that women accused of adultery cannot marry during the lifetime of their husbands, even before they have been convicted.

27. Ulpianus, On the Lex Julia et Papia, Book III.

Where a man of senatorial rank has as a wife a woman who has been manumitted, although, in the meantime, she may not legally be his wife, still, she occupies such a position that if he should lose his rank she will become his wife.

28. Marcianus, Institutes, Book X.

A patron cannot marry his freedwoman against her consent.

29. Ulpianus, On the Lex Julia et Papia, Book III.

It is stated that Ateius Capito, during his consulate, issued a decree of this kind. It must be observed, however, that this rule does not apply where a patron emancipated a female slave in order to marry her.

30. Gaius, On the Lex Julia et Papia, Book II. A pretended marriage is of no force or effect.

31. Ulpianus, On the Lex Julia et Papia, Book VI.

Where a senator is permitted to marry a freedwoman by the consent of the Emperor, she will be his lawful wife.

32. Marcellus, On the Lex Julia et Papia, Book I.

It should be noted that where a freedman gives himself to be adopted by a man who is born free, although he obtains the rights of a freeborn person in the adoptive family, being a freedman, still, he will not be permitted to contract marriage with the daughter of a senator.

33. The Same, On the Lex Julia et Papia, Book III.

Many authorities hold that when a woman, after separation, returns to her husband, this is the same marriage. I assent to this opinion, provided they are reconciled before a long time has elapsed, and neither of them has married anyone in the meantime, and especially if the husband has not returned the dowry.

34. Papinianus, Opinions, Book IV.

Where a general commission has been given to a man by someone to seek a husband for his daughter, this is not sufficient ground for the conclusion of a marriage. Therefore it is necessary that the person selected should be introduced to the father, and that he should consent to the marriage, in order for it to be legally contracted.

(1) Where a man has accused his wife of adultery in accordance with his right as a husband, he is not forbidden, after the annulment of the marriage, to marry again. If, however, he does not accuse his wife as her husband, it will be held that the marriage which has been contracted will remain valid.

(2) Marriage can be contracted between stepchildren, even though they have a common brother, the issue of the new marriage of their parents.

(3) Where the daughter of a senator marries a freedman, this unfortunate act of her father does not render her a wife, for children should not be deprived of their rank on account of an offence of their parent.

35. The Same, Opinions, Book VI.

A son under paternal control, who is a soldier, cannot contract matrimony without the consent of his father.

36. Paulus, Questions, Book V.

A guardian or a curator cannot marry a grown woman who is committed to his care, unless she has been betrothed to, or intended for him by her father, or where the marriage takes place in accordance with some condition mentioned in his will.

37. The Same, Opinions, Book VII.

The freedman of a curator must be prevented from marrying the ward of the latter.

38. The Same, Sentences, Book II.

While anyone is discharging the duties of an office in a province, he cannot marry a woman who has either been born or resides therein, although he is not forbidden to betroth himself to her; but if, after his term of office has expired, the woman refuses to marry him, she can do so, after having returned any nuptial gifts which she may have received.

(1) Where anyone discharges the duties of an office, he can marry a woman to whom he has previously been betrothed, if the dowry given is not about to be confiscated.

(2) He who exercises a public office in a province is not prevented from marrying his daughters there, and bestowing dowries upon them.

39. The Same, On Plautius, Book VI.

I cannot marry the granddaughter of my sister, because I stand in the relation of a parent to her.

(1) If anyone should take as a wife a woman whom he is forbidden by good morals to marry, he is said to commit incest.

40. Pomponius, On Plautius, Book IV.

Aristo gave it as his opinion that a man could not marry the daughter of his stepdaughter, any more than he could his stepdaughter herself.

41. Marcellus, Digest, Book XXVI.

It is understood that disgrace attaches to those women who live unchastely, and earn money by prostitution, even if they do not do so openly.

(1) If a woman should live in concubinage with someone besides her patron, I say that she does not possess the virtue of the mother of a family.

42. Modestinus, On the Rite of Marriage.

In unions of the sexes, it should always be considered not only what is legal, but also what is decent.

(1) If the daughter, granddaughter, or great-granddaughter of a senator should marry a freedman, or a man who practices the profession of an actor, or whose father or mother did so, the marriage will be void.

43. Ulpianus, On the Lex Julia et Papia, Book I.

We hold that a woman openly practices prostitution, not only where she does so in a house of ill-fame, but also if she is accustomed to do this in taverns, or in other places where she manifests no regard for her modesty.

(1) We understand the word "openly" to mean indiscriminately, that is to say, without choice, and not if she commits adultery or fornication, but where she sustains the role of a prostitute.

(2) Moreover, where a woman, having accepted money, has intercourse with only one or two persons, she is not considered to have openly prostituted herself.

(3) Octavenus, however, says very properly that where a woman publicly prostitutes herself without doing so for money, she should be classed as a harlot.

(4) The law brands with infamy not only a woman who practices prostitution, but also one who has formerly done so, even though she has ceased to act in this manner; for the disgrace is not removed even if the practice is subsequently discontinued.

(5) A woman is not to be excused who leads a vicious life under the pretext of poverty.

(6) The occupation of a pander is not less disgraceful than the practice of prostitution.

(7) We designate those women as procuresses who prostitute other women for money.

(8) We understand the term "procuress" to mean a woman who lives this kind of a life on account of another.

(9) Where one woman conducts a tavern, and keeps others in it who prostitute themselves, as many are accustomed to do under the pretext of employing women for the service of the house; it must be said that they are included in the class of procuresses.

(10) The Senate decreed that it was not proper for a senator to marry or keep a woman who had been convicted of a criminal offence, the accusation for which could be made by any of the people; unless he was prohibited by law from bringing such an accusation in court.

(11) Where a woman has been publicly convicted of having made a false accusation, or prevarication,¹ she is not held to have been convicted of a criminal offence.

¹ Prevaricatio, or the malicious betrayal of the confidence of another, and which had reference to a professional breach of faith committed by an attorney, through whose treachery his client's interests were injuriously affected, was afterwards classed with calumnia, or false accusation; and from being, in the first place, only applicable to those conducting civil cases, was ultimately held to include all persons guilty of the disclosure of confidential information while engaged in the prosecution of crime. The penalty remained unaltered. — ED.

(12) Where a woman is caught in adultery, she is considered to have been convicted of a criminal offence. Hence if she is proved to have been guilty of adultery, she will be branded with infamy, not only because she was caught flagrante delicto, but also because she was convicted of a criminal offence. If, however, she was not caught, but was, nevertheless, found guilty, she becomes infamous because she was convicted of a criminal offence; and, indeed, if she was caught but was not convicted, she would still be infamous. I think that even if she should be acquitted after having been caught, she will still remain infamous, because it is certain that she was taken in adultery, and the law renders the act infamous and does not make this dependent upon the judicial decision.

(13) It is not mentioned here, as in the Lex Julia on adultery, by whom or where the woman must be caught; hence she is considered infamous whether she was caught by her husband or by anyone else. She will also be infamous according to the terms of the law, even if she was not caught in the house of her husband or her father.

44. Paulus, On the Lex Julia et Papia, Book I.

It is provided by the Lex Julia that: "A senator, or his son, or his grandson, or his great-grandson by his son, or grandson, shall not knowingly or with malicious intent become betrothed to, or marry a freedwoman, or a woman whose father or mother practices, or has practiced the profession of an actor. Nor shall the daughter of a senator, or a granddaughter by his son, or a great-granddaughter by his grandson marry a freedman, or a man whose father or mother practices, or has practiced the profession of an actor, whether they do so knowingly, or with malicious intent. Nor can any one of these parties knowingly, or with malicious intent become betrothed to, or marry the daughter of a senator."

(1) Under this head a senator is forbidden to marry a freedwoman whose father or mother has, at any time, exercised the profession of an actor. A freedman is also forbidden to marry the daughter of a senator.

(2) If the grandfather or grandmother of the woman belonged to the theatrical profession, this will not be an obstacle to the marriage.

(3) No distinction is made whether the father has the daughter under his control or not. But Octavenus says that it must be understood that the father is legitimate, as well as the mother, even if the child is illegitimate.

(4) Again, it makes no difference whether the father is a natural or an adoptive one.

(5) Would it be an obstacle if the father had belonged to the theatrical profession before he made the adoption, or if the natural father had been connected with this profession before his daughter was born? Where a man of this degraded rank adopts a child, and afterwards emancipates her, can he not marry her, just as would be the case where a natural father dies? Pomponius very properly thinks that, in this instance, the opinion is contrary to the meaning of the law, and that children of this kind cannot be classed with the others.

(6) If the father or mother of a freeborn woman, after the marriage of the latter, should begin to exercise the profession of the stage, it would be most unjust for the daughter to be repudiated by her husband, as the marriage was honorably contracted, and children may already have been born.

(7) It is evident that if the woman herself becomes a member of the theatrical profession, she should be repudiated by her husband.

(8) Senators cannot marry women whom other freeborn men are forbidden to take as wives.

45. Ulpianus, On the Lex Julia et Papia, Book III.

In that law which provides that where a freedwoman has been married to her patron, after separation from him she cannot marry another without his consent; we understand the patron to be one who has bought a female slave under the condition of manumitting her (as is stated in the Rescript of our Emperor and his father), because, after having been manumitted, she becomes the freedwoman of the purchaser.

(1) This rule does not apply to anyone who has sworn that he is the patron of the woman.

(2) Nor should he be considered her patron who did not purchase the woman with his own money.

(3) It is clear that we must not doubt that a son under paternal control, who is a soldier, acquires this right if he manumits a female slave by means of his castrense peculium; for he becomes her patron in accordance with the Imperial Constitutions, and this privilege does not belong to his father.

(4) This section of the law has reference only to a freedwoman who is married, and does not apply to one who is betrothed; hence, if a freedwoman, who has been betrothed, notifies her patron of her repudiation of the contract, she can contract matrimony with another, even if her patron should be unwilling.

(5) The law says in the next place: "If her patron should be unwilling," and we should understand the term "unwilling" to refer to a party who consents to a divorce, and therefore she who is divorced from an insane husband, is not exempt from the consequences of this law; nor where she does so while the latter is ignorant of the fact, for her patron is more properly said to be unwilling than one who dissents.

(6) Where a patron is captured by enemies, I apprehend that she can marry just as would be the case if her patron was dead. Those who adopt the opinion of Julianus hold that she could not contract marriage, for he thinks that the marriage of a freedwoman lasts even during the captivity of her patron, on account of the respect which she owes him. It is evident, however, that if her patron should be reduced to any other kind of servitude, the marriage would unquestionably be dissolved.

46. Gaius, On the Lex Julia et Papia, Book VIII.

Can it be doubted whether this law will apply where a patron marries a freedwoman in whom another party jointly has rights? Javolenus denies that it does apply, because she is not properly held to be the freedwoman of one man who also is that of another. On the contrary, others hold that it cannot be denied that she is the freedwoman of one man, because she is also the freedwoman of another; and this opinion the majority of jurists have approved as correct.

47. Paulus, On the Lex Julia et Papia, Book II.

The daughter of a senator who has lived in prostitution, or has exercised the calling of an actress,¹ or has been convicted of a criminal offence, can marry a freedman with impunity; for she who has been guilty of such depravity is no longer worthy of honor.

¹ Members of the theatrical profession were considered infamous by the ancients, and especially so by the Romans. There were two reasons for this: first, because actors were generally slaves or freedmen, and second, because the morals of those who appeared in these exhibitions were so debased as to render them objects of public execration and contempt. This prejudice against actors continued to exist until the fall of the Empire; and the obloquy attaching to their persons naturally extended to dramatic representations as well. An eminent writer has characterized the latter as not only disgraceful, but lacking in every attribute of decency. "Quæ omnia apud nos partim infamia, partim humilia atque ab honstate remota, ponuntur." (Cornelius Nepos, De Viris Illustribus, Præfatio.) The fact that female parts were played by boys, whose unnatural vices were notorious, had a tendency to still further lower the stage in the general estimation. Notwithstanding this, theatrical exhibitions were popular with a certain class, and many actors received immense salaries. Some of the gilded youth of Italy even went so far as to have themselves judicially pronounced infamous, in order to appear as histriones, and by this means evade the severe penalty incurred by Roman citizens who voluntarily subjected themselves to such degradation. — ED.

48. Terentius Clemens, On the Lex Julia et Papia, Book VIII. The same legal rights are accorded to the son of a patron, in the marriage of a freedwoman belonging to his father, as are granted to the patron himself. This rule applies where the son of one patron, during the lifetime of another, marries the freedwoman of both.

(1) It is settled that where a patron marries his freedwoman who has disgraced herself, he will not be entitled to the advantages conferred by this law, because he married her in violation of its provisions.

(2) Where one son marries a freedwoman who has been allotted by will to another, the former will not be entitled to the same rights as a patron. And, in fact, he will have no control over her, because the Senate transferred all the rights belonging to a patron to him for whom his father intended her.

49. Marcellus, On the Lex Julia et Papia, Book III.

It should be observed that men of inferior station can marry women with whom others of higher rank are forbidden by law to contract matrimony, on account of their superior dignity. On the other hand, men of exalted rank cannot take as wives women whom it is not lawful for those who are of inferior station to marry.

50. The Same, On the Lex Julia et Papia, Book III.

It is said to have been recently decided that where a man marries his freedwoman whom he manumitted in compliance with the terms of a trust, she can contract matrimony with another without his consent; and I think this is correct, because he should not enjoy the privilege of a patron who was obliged to manumit the woman and did not do so voluntarily, as he rather gave her the freedom to which she was entitled, than conferred any benefit upon her.

51. Licinius Rufinus, Rules, Book I.

When a female slave has been manumitted for the purpose of matrimony, she cannot marry anyone else than the party by whom she was set free, unless her patron renounces the right of marriage with her.

(1) Where, however, a son under paternal control manumits a female slave by order of his father, for the purpose of matrimony, Julianus thinks that she is in the same position as if she had been manumitted by the father, and therefore that he can marry her.

52. Paulus, On Sabinus, Book VI.

Incestuous marriages confer no right of dowry, and therefore the husband can be deprived of everything which he receives, even though it comes under the head of profits.

53. Gaius, On the Provincial Edict, Book XI.

Marriage cannot take place between parties who stand in the relationship of parents and children, or in the next degree, or in any more distant degrees, ad infinitum.

54. Scævola, Opinions, Book I.

It makes no difference whether the relationship is derived from lawful marriage, or not; for a man is forbidden to marry his illegitimate sister.

55. Gaius, On the Provincial Edict, Book XL

It is also considered abominable to marry an adopted daughter, or granddaughter, and this rule of law is of such force that it still remains applicable even where the adoption has been dissolved by emancipation.

(1) I cannot marry the mother of my adoptive father, nor his maternal aunt, nor his granddaughter the issue of his son, as long as I remain in the family. After I have been emancipated, however, there is no doubt that nothing will prevent me from marrying any one of them, because I shall not be considered as related to them after emancipation.

56. Ulpianus, Disputations, Book III.

Where a man keeps the daughter of his sister as a concubine, even though she be a freedwoman, he is guilty of incest.

57. Marcianus, Institutes, Book II.

Anyone who administers an office in a province cannot consent to the marriage of his son in said province.

(1) Marcianus says in a note, in the Second Book on Adultery by Papinianus, that the Divine Marcus and Lucius, Emperors, stated in a Rescript addressed to Flavia Turtulla, by means of Mensor, a freedman : "We are induced, by the length of time during which you, being ignorant of the law, have lived in matrimony with your uncle, and also because you have been married with the consent of your grandmother, as well as on account of your numerous offspring, to decide, taking all these circumstances into account, that the legal status of your children, the issue of a marriage contracted forty years ago, shall be confirmed, and that they shall, therefore, be considered legitimate."

58. Marcianus, Rules, Book IV.

It is stated in a Rescript by the Divine Pius that, if a freedwoman, representing herself to be freeborn, should deceive a senator and marry him, an action should be granted against her, just as in the case of the Prætorian Edict, for the reason that she can derive no advantage from her dowry, as it is void.

59. Paulus, Concerning the Assignment of Freedmen.

By the Decree of the Senate, in which it is provided that a guardian cannot either give his ward in marriage to his son, or marry her himself, his grandson also is meant.

60. The Same, On the Address of the Divine Antoninus and Commodus.

Where anyone is not actually a guardian, but the responsibilities of guardianship, nevertheless, attach to him, is he included in the terms of the Address; as, for instance, where his female ward is captured by the enemy, or where he withdraws from the guardianship by means of false allegations, so that he still remains subject to the responsibilities of the trust under the Sacred Constitutions?

It must be said that these instances also come under the Decree of the Senate; for it has been established that liability of this kind existed in a case involving three guardianships.

(1) Where, however, anyone is charged with responsibility for the person of another, let us see whether this may not be beyond the scope of the Decree of the Senate; for example, if a magistrate incurs responsibility in case of guardianship, or a party becomes surety for a guardian or a curator; because under such circumstances, these things will not be considered to apply to a third guardianship, and it must be approved in consequence.

(2) But what if an honorary guardian is appointed, as such a guardianship is not included among the three, will this same question arise? Reason indicates the contrary, because it is stated that an honorary guardian must assume the responsibility if he suffers the guardianship to be improperly administered.¹

¹ An honorary guardian, in Roman law, was one who merely had general supervision of the affairs of his ward, their active management having been committed to his colleague, the gerente, it being his especial duty to report any negligence, or act of maladministration of the latter, to the Prætor. In case of emergency, however, unless he had been expressly prohibited from doing so, he had a right to transact the business of the trust. His subordinate position by no means exempted him from responsibility. — ED.

(3) There is no doubt that a party who, after having been appointed guardian, does not attend to the administration of the trust, comes within the scope of the Address, because he is liable under the Sacred Constitutions just as if he had administered it.

(4) But what if the guardian desired to be excused for some reason, and could not produce any proof at the time, so that the investigation of his excuse was deferred; and meanwhile his female ward should grow up, would the Decree of the Senate be applicable to him?

The question is dependent on whether, after the ward had arrived at puberty, and the guardianship was at an end, his excuse could be accepted. For if it was accepted, and he should be discharged, he can marry her with impunity; but if it ought not to be accepted after his trust is terminated, he cannot legally marry her.

Papinianus says in the Fifth Book of Opinions that where the office of a guardian is terminated, his excuse must not be accepted; and therefore he is responsible for the time which has elapsed. This opinion, however, is by no means satisfactory to me, for it is unjust for the guardian not to be excused, or for his marriage to be prevented where his excuse has been accepted, on account of delay which did not take place through fraud, but from necessity.

(5) Although it is provided by the terms of the Address that a guardian cannot marry his ward, it must still be understood that he cannot even be betrothed to her; for she, generally speaking, cannot be betrothed to a person to whom she cannot be married, since she who can be married can be legally betrothed.

(6) But what if the adopted son of a guardian should illegally marry the ward, and afterwards be emancipated? It must be believed that the Senate did not have reference to the adoption of children who had been emancipated, because, after emancipation, the adoptive family is left entirely out of consideration.

(7) The natural children of a guardian, even though they may have been given in adoption, are included in the Decree of the Senate.

(8) But what if a guardian, after having been appointed, should appeal, and his heir is subsequently defeated, must he be responsible during the time which has elapsed? And if the heir is the son of the guardian, and should lose his case, will he come within the scope of the Address? It follows that he would, since he has an account to render.

61. Papinianus, Questions, Book LII.

Where a dowry is confiscated on account of an unlawful marriage, the husband must pay all that he would be compelled to do, in an action on dowry, with the exception of the necessary expenses which usually diminish the dowry by operation of law.

62. The Same, Opinions, Book IV.

Although the father was willing that the marriage of their daughter should be left entirely to the judgment of the mother, she will not be permitted to select the guardian; for the father is not presumed to have the appointment of a guardian in mind; since he especially deferred to the wishes of the mother in order to prevent her giving the daughter in marriage.

(1) There is impropriety in a woman marrying the freedman of her husband and patron.

(2) Where a guardian renders his accounts to a curator, he cannot marry his ward before the time appointed by law; not even if, in the meanwhile, she has become a mother through having contracted another marriage.

63. The Same, Definitions, Book I.

Where the prefect of a cohort or of cavalry, or a tribune, marries a woman of the province in which he is stationed, this being prohibited by law, the marriage will be void. This case is similar to that of a ward, as the marriage is forbidden on account of the authority exercised. But is there room for doubt that where a virgin marries, she can be deprived of what was left to her by will? As in the case of a ward married to her guardian, the wife can acquire everything that is bequeathed to her; still, any money which has been left by way of dowry must be given up to the heir of the woman.

64. Callistratus, Questions, Book II.

The Senate decreed that a freedman, who was also the guardian of his patron's daughter, should be banished because she married him, or his son.

(1) I think that the foreign heir of a guardian should be included in the terms of the Decree of the Senate by which guardians and their sons are forbidden to marry their female wards; since marriages of this kind are prohibited to prevent wards from being cheated by those who are compelled to account to them for the administration of their guardianship.

(2) A guardian is not forbidden to give his daughter in marriage to his ward.

65. Paulus, Opinions, Book VII.

Persons who administer public offices in their native provinces are not held to violate the law by marrying in said provinces; and this is also provided by certain Imperial Decrees.

(1) Paulus says in the same place: "I am of the opinion that, even though a marriage is contracted in a province contrary to law, still, after the term of office has expired, if the parties continue to be of the same mind, the marriage will become lawful, and therefore any children born subsequently will be legitimate, as in the case of a legal marriage."

66. The Same, Sentences, Book II.

Where a guardian or a curator marries his ward before she has reached the age of twenty-six (if she has not been betrothed by her father, or allotted by him to anyone in his will), or if he gives her in marriage to his son; both parties will become infamous on this account, and shall be arbitrarily punished, depending upon the rank of the ward. It makes no difference, in this case, whether the son is his own master, or is under the control of his father.

(1) It is very improper for the freedman of a curator to marry a ward of his patron who is administering the affairs of the curatorship.

67. Tryphoninus, Disputations, Book IX.

The son of a guardian is forbidden to marry his ward, while his father is compelled to render an account of the guardianship; whether he does so during the lifetime of the guardian, or after his death. I do not think that it makes any difference whether the son becomes his heir; or whether he rejects the estate of his father; or whether he does not become his heir because he was disinherited; or, having been emancipated, he was passed over in the will; for it might be compelled to surrender property belonging to the guardianship which has been fraudulently given to him by his father.

(1) There is one point with reference to which doubt may arise; for instance, where a grandfather is administering the guardianship of his granddaughter born to an emancipated son, can he give her in marriage to a grandson by another son, whether he is emancipated or still remains under his control, as his affection for both of them will remove any suspicion of fraud? Although the Decree of the Senate, in its strict interpretation, applies to all kinds of guardians, still, in consideration of the great affection entertained by a grandfather, a marriage of this kind should be permitted.

(2) Where a son under paternal control is the guardian or curator of a girl, I think that there is still more reason that she should not be allowed to marry his father. Should she be allowed to marry his brother, who is under the control of the same father?

(3) Let us see if the son of Titius should marry a girl who was your ward, and you then adopt Titius, or his son, whether the marriage will be annulled, as is settled in the case of an adopted son-in-law, or whether the adoption will constitute an impediment to the marriage.

The latter is the better opinion, even if the curator, while he is administering his office, should adopt the husband of the girl whose curator he is; for, as soon as the guardianship is terminated, and the girl is married to someone else, I think that, in order to prevent the adoption of her husband, it would be necessary to show that it was contrived to prevent the rendering an account of the guardianship, which the Address of the Divine Marcus included as a cause for the prevention of marriages of this description.

(4) Where a curator is appointed for the property of an unborn child, he will be subject to the prohibition of this Decree of the Senate, for he also must render an account. The time consumed in the administration of a curatorship should not be considered by us, because, whether it be long or short, the time required to carry out such a trust by the person charged with its performance is of no consequence.

(5) While Titius was administering the guardianship of a female ward, or as her curator was transacting her business, she died, and left a daughter as her heir, before an account had been rendered. The question arises whether Titius could give her in marriage to his son. I said that he could do so, because the account due to the estate was merely a simple debt; otherwise, every debtor who was liable to him for any reason whatsoever would be forbidden to marry her himself, or give her in marriage to his son.

(6) Where a guardian causes his ward to reject the estate of her father, he should give her a good reason for doing so, for he might happen to have judgment rendered against him on this ground if he acted without proper deliberation; even if he did not avail himself of the aid of the Prætor, after taking proper advice, because the father of the girl died insolvent. Nevertheless, as it is necessary for this to be proved in court, the marriage will be hindered; for he who has administered a guardianship advantageously and with fidelity, will still be prohibited from contracting such a marriage.

68. Paulus, On the Turpilian Decree of the Senate.

Where any man marries a female relative, either in the ascending or descending line, he commits incest according to the Law of Nations. He who marries a female relative in the collateral line, (where this is expressly forbidden), or some woman is connected with him by affinity, and he does this publicly, he will incur a lighter penalty, but if he commits such an act clandestinely, he will incur a more severe one.

The reason for this difference with reference to marriage improperly contracted with a relative in the collateral line is, that those who publicly commit the offence are not subjected to a more grievous penalty because they are considered to be ignorant, but those who commit it secretly are punished severely as being contumacious.

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TITLE III. CONCERNING THE LAW OF DOWRY.

1. Paulus, On Sabinus, Book XIV.

The right to a dowry is perpetual, and, in accordance with the desire of the party who bestows it, the contract is made with the understanding that the dowry will always remain in the hands of the husband.

2. The Same, On the Edict, Book LX.

It is to the interest of the State that women should have their dowries preserved, in order that they can marry again.

3. Ulpianus, On the Edict, Book LX11I.

The term dowry does not apply to marriages which are void, for there cannot be a dowry without marriage. Therefore, where the name of marriage does not exist, there is no dowry.

4. Paulus, On Sabinus, Book VI.

When the usufruct is added to the mere ownership given by way of dowry, it is held that this is an increase of the dowry and not a second one; just as where there is an accession made by alluvion.

5. Ulpianus, On Sabinus, Book XXXI.

A profectitious dowry is one derived from either the property or the act of a father, or some other ancestor.

(1) Hence where an ancestor, or his agent, gives a dowry or orders another to give it, or when anyone who is transacting his business gives it, and the ancestor ratifies his act, this is a profectitious dowry.

(2) Where anyone who is desirous of making a gift to a father gives the dowry, Marcellus says in the Sixth Book of the Digest that this dowry also comes from the father, and is profectitious, which is correct.

(3) Moreover, if the curator of an insane person, or of a spendthrift, or of anyone else, gives a dowry, we say that it also is profectitious dowry.

(4) If, however, we suppose that the Prætor or Governor of a province issues a decree stating how much of the property of a father, who is held in captivity either by the enemy or by robbers, shall be given to his daughter by way of dowry, this also is held to be profectitious.

(5) Julianus says that a dowry is not profectitious where a father rejects an estate for the purpose of providing a dowry, because the husband of his daughter has been substituted, or where he would be able to claim the estate ab intestato. If, however, the father should reject a legacy in order that it might remain in the hands of his son-in-law, who was the heir, by way of dowry, Julianus holds that this was not derived from his property, because the father did not pay out any money belonging to himself, but merely declined to acquire the legacy.

(6) Where a father, not in the capacity of a parent, but because he has become surety for another, promises a dowry, and, as surety, is compelled to pay, Neratius says that this dowry is not profectitious, although the father cannot recover from the principal debtor what he has paid.

(7) But if the father promises the dowry, and provides a surety or another debtor in his behalf, I think that the dowry will be profectitious; for it is sufficient for the father to be liable either to the principal debtor or to the surety.

(8) Where a son under paternal control borrows money and charges his creditor to give a dowry for his daughter, or if he receives the money and gives it, the dowry is held to be derived, as Neratius says, from the grandfather; inasmuch as the latter will be obliged to endow his granddaughter, for the transaction seems to have been made with reference to the property of the grandfather.

(9) Julianus states in the Seventeenth Book of the Digest that where anyone gives a certain sum of money to his father, with the understanding that he is to give it to his daughter by way of dowry, this is not a profectitious dowry; for the father is bound to give the money, and if he does not do so, he will be liable to an action for its recovery.

He says that this same rule applies to a mother, since, if she gives a sum of money to her husband under the condition that he shall pay it to his son-in-law by way of dowry for his daughter, the wife is not held to have donated the money to her husband; therefore, he says very properly, that this gift is not one of those prohibited by the Civil Law, as she did not give it to her husband in order that he might keep it, but for him to pay it to her son-in-law, that he might expend it for the benefit of her daughter; hence if he should not employ it for that purpose, he will be liable to an action for its recovery. Therefore Julianus says that this dowry is adventitious, and we hold it to be such.

(10) Where a son under paternal control promises a dowry, and gives it after having become his own master, it is profectitious, for he does not pay the money as a debt of the estate of his father, but as a debt of his own contracted when he was under paternal control, from liability for which he is released through having become the head of a household.

(11) If a father should give a dowry in behalf of his emancipated daughter, no one doubts that it is none the less profectitious, for not the right of authority, but the title of parent renders a dowry profectitious. This is only true where the father gives the dowry, but if where he owes it to his daughter, and gives it with her consent, the dowry becomes adventitious.

(12) Papinianus says in the Tenth Book of Questions that where a father, being the curator of his daughter who is her own mistress, constitutes a dowry for her, he will be held to have done so rather as her father than in the capacity of curator.

(13) Julianus says in the Nineteenth Book of the Digest that an adoptive father has the right to recover a dowry, if he himself bestowed it.

(14) Where anyone promises a dowry for the daughter of another, and her father becomes the heir of the promisor, Julianus says that a distinction exists if the father becomes the heir and gives the dowry before marriage, and if he does so subsequently. If this took place before marriage, the dowry is held to be profectitious, for he would be able, by serving notice, to recover it; if, however, it occurred after marriage, it would not be profectitious.

6. Pomponius, On Sabinus, Book XIV.

Relief is granted to the father by law where, having lost his daughter, he is entitled to the return of the dowry which came from him, and this is done by way of solace, in order that he may not suffer both the loss of his daughter and that of the money.

(1) Where a father gives, by way of dowry, land belonging to another but which he purchased in good faith, the dowry is understood to be profectitious.

(2) If, in the bestowal of the dowry, either of the parties has been imposed upon, relief is granted, even to one who is over twenty-five years of age; because it is not consistent with what is proper and just for one person to profit by the loss of another, or to suffer loss through the gain of another.

7. Ulpianus, On Sabinus, Book XXXI.

Equity demands that the profits of a dowry shall belong to the husband, for, as he sustains the burdens of matrimony, it is but just that he should receive the profits.

(1) The profits received during marriage do not belong to the dowry, but where they are received before marriage they become part of it; unless there was some other agreement made between the future husband and wife; for then the profits will not be returned, because they are considered to be a donation.

(2) Where an usufruct is given by way of dowry, let us see whether or not the profits of the same must be returned. Celsus says in the Tenth Book of the Digest that it must be ascertained what the intention of the parties was; and where there was no agreement to the contrary, he thinks that the right of usufruct alone constitutes the dowry, and that the profits derived from it are not included therein.

(3) Where property is given by way of dowry, I think that it becomes part of the estate of the husband, and that the accession of time derived from his wife should be granted to her husband. Property thus given belongs to the husband, if it is bestowed, by way of dowry during the existence of the marriage. But what if it was given before marriage? If, indeed, the woman gave it with the understanding that it should immediately become his, it will do so. If, however, she gave it under the condition that it would become his when the marriage took place, we can undoubtedly say that it will belong to him when the nuptials are celebrated. Hence, if the marriage should not take place on account of repudiation, and the woman gave the property with the understanding that it should immediately belong to the husband as soon as notice of repudiation is served, she will have a right to recover it. But if she gave it under the condition that it would become his as soon as the marriage was performed, and notice of repudiation is given, she can immediately recover the property. If she brings suit to recover it before notice of repudiation is served, an exception on the ground of bad faith, or in factum, can be pleaded in bar, for suit should not be brought for the recovery of property intended for a dowry.

8. Callistratus, Questions, Book II.

Where, however, it is evident that such action has not been taken, it must be held to be understood that the property immediately passes to the betrothed, and unless the marriage is solemnized it must be returned.

9. Ulpianus, On Sabinus, Book XXXI.

If I give certain property to Seia, in order that she herself may give it in her own behalf by way of dowry, it becomes hers, even though it should not be bestowed by way of dowry; but she will be liable to an action for its recovery. If I give anything in her behalf before marriage, it makes a difference under what condition I gave it, whether it was to belong to her husband at once, or after the marriage had been performed. If it was given to become his immediately, and notice of repudiation is served, I will have a right to recover it; but if this is not the case, I can claim it on the ground that the property still belongs to me. Wherefore, if the marriage cannot take place on account of some illegal impediment, in the second instance, the property will remain mine.

(1) If I deliver property to anyone to become a dowry after marriage has taken place, and I die before the marriage is celebrated, does the property constitute the dowry if the marriage is afterwards performed? I am in doubt as to whether it will pass to the person to whom it is given, because he who gave it is divested of the ownership, after death, as the donation was pending until the day of the marriage; and when the condition of the marriage is fulfilled, the ownership of the property will have already passed to the heir, and it must be held that he cannot be deprived of the same without his consent.

The more equitable opinion is the one in favor of the dowry, and for the heir to be required to consent to the act of the deceased; or, if he should defer his decision, or be absent, or be unwilling, the ownership should be transferred to the husband by operation of law, in order that the woman may not remain without any dowry.

(2) We must understand that property given on account of a dowry is that which is given as dowry.

(3) Again where property is given as what the Greeks call parapherna and the Gauls peculium, let us see whether the right to it at once vests in the husband. I think that if it is given to become his, it at once passes to the husband; and if the marriage should be dissolved, the woman cannot claim it as hers, but should bring a personal action for its recovery, and not institute proceedings by an action on dowry as the Divine Marcus, our Emperor, and his father, stated in a Rescript. It is evident that if a schedule of the property of the wife is given to her husband, as is generally done at Rome, for a wife is accustomed to place in a schedule the property which she is to make use of in the house of her husband, and which she does not give as a dowry, in order that he may sign it, as having received said property, and that she may retain possession of the document which contains a description of what she brought into his house.

Let us consider whether this belongs to the husband. I do not think that it does, not for the reason that it is not delivered to him, for what difference will it make whether it is delivered to him or not, if it is brought into his house with his consent; but because I do not believe that it was agreed between husband and wife that the ownership of said property would be transferred to him, but rather as it is certain that, in case of a separation, this cannot be denied; and because frequently the husband assumes responsibility for such articles unless they are left in charge of his wife.

Let us see whether, if such articles should not be returned, the woman can bring an action on the ground of property removed, or on deposit, or on mandate. Where the safe-keeping of the effects was entrusted to the husband, she can bring an action on deposit, or mandate; otherwise, an action for property removed will lie, if the husband retains it with the intention of appropriating it, or suit for production can be brought, if he has not attempted to remove the property.

10. The Same, On Sabinus, Book XXXIV.

It is generally to the interest of the husband that the property which he receives as dowry should not be appraised, in order that he may not be compelled to be responsible for the same; and especially if he receives animals, or woman's garments by way of dowry. For if the latter are appraised, and the wife wears them out, the husband will, nevertheless, be liable for the amount at which they were estimated. Therefore, whenever property is given as dowry, without having been appraised, if it is increased in value she will profit by it, but if it is depreciated she must bear the loss.

(1) Where land which has not been appraised receives some accession, this will be for the benefit of the woman, and if it loses anything in value the loss will be hers.

(2) Where slaves are given by way of dowry, and have children, this profit does not belong to the husband.

(3) The increase of cattle given by way of dowry, however, belongs to the husband, because it is considered as profit; still, as it is necessary before everything else, for the property to be kept up, and where any animals die, the same number of head must be replaced with their offspring, the husband is only entitled to the remainder by way of profit, because the profit derived from the dowry belongs to him.

(4) Where property to be given by way of dowry is appraised before marriage, this appraisement is, as it were, conditional, for it depends upon whether the marriage takes place. Therefore, where the nuptials are celebrated, the appraisement of the property is perfected, and a genuine sale is made.

(5) Hence it may be asked whether the woman must bear the loss if slaves who have been appraised should die before her marriage. On this point it must be said that, as the sale is conditional, if death occurs while the condition is pending, it annuls the sale; and it must be held in consequence that the loss should be borne by the woman, for the reason that the sale was not yet complete, because the appraisement takes the place of a sale.

(6) If property is given by way of dowry, even though it may have been appraised, but an agreement is made that either the amount of the appraisement or the property itself shall be returned, and this clause is added, namely: "Whichever the wife may desire," she herself can choose whether she prefers to demand the property or the value of the same. If, however, this clause is added, namely: "Whichever her husband wishes," he will have the right of selection, or where nothing is said about the selection, the husband will be entitled to choose whether he would rather surrender the property or pay the price of it; for where one thing or another is promised, the party has a right to select which he will give, but where the property is no longer in existence, the husband must, by all means, pay its appraised value.

11. Paulus, On Sabinus, Book VII.

It is certain that the husband can return the property, even though it may be deteriorated.

12. Ulpianus, On Sabinus, Book XXXIV.

Where the property is appraised after the marriage has been contracted, and this is approved as a donation, the appraisement is void, because property cannot be sold for the purpose of making a donation, as such a transaction has no force as between man and wife; therefore the property will still remain as part of the dowry. Where a similar donation is made before marriage, the better opinion is that it is to be referred to the time when the marriage takes place, and therefore it will not be valid.

(1) Where a woman states that she has been deceived in the appraisement of her property, because it is too low; as, for instance, if she has been deceived with reference to the value of a slave whom she has given, it must be ascertained whether she has been taken advantage of in the delivery of the slave, in which case the slave should be returned to her; or whether she has been overreached in the appraisement, since, if she was only deceived in the appraisement, the husband will have the choice as to whether he will prefer to pay her the actual value of the slave, or surrender the slave himself.

This rule applies if the slave is living, but if he is dead, Marcellus says that the husband must pay his value, not his true value but that which was established by his appraisement, because the woman ought to congratulate herself that the slave was appraised. Where, however, the woman simply, gives the slave, there is no doubt that the risk remains with her, and not the husband; and Marcellus holds the same opinion where a minor has been deceived.

It is evident that if the wife has a purchaser who is willing to pay a just price, then it must be said that a proper appraisement should be made; and Marcellus states that this ought only to be done where the wife is a minor. Scævola, however, holds with reference to the husband that, if there is bad faith on his part, a just appraisement must be made, and I think that what Scævola says is perfectly correct.

(2) Where a wife agreed with her husband, who was her debtor, that he should have as dowry what he owed her, I think that she can bring an action on dowry; for although he will not be released from liability for a former debt by operation of law, still, he will be entitled to an exception.

13. Modestinus, On the Difference in Dowries.

Where a woman, after a divorce, returns to her husband before bringing an action on stipulation to recover her dowry, it may be positively stated that the action on stipulation will be barred by an exception on the ground of bad faith, as long as the marriage lasts.

14. Ulpianus, On the Edict, Book XXXIV.

Where a woman gives, by way of dowry, property which has been appraised, and afterwards is in default in delivering the same, and the property ceases to exist, I do not think that she will be entitled to an action.

15. Pomponius, On Sabinus, Book XIV.

Where she is not to blame, she will be entitled to the price, just as if she had delivered the property, because anything that happens will be at the risk of the purchaser.

16. Ulpianus, On Sabinus, Book XXXIV.

Whenever property which has been appraised is given by way of dowry, and is then evicted, the husband can bring an action on purchase against his wife, and whatever he recovers on that ground he must surrender to his wife in an action on dowry, if the marriage should be dissolved. Wherefore, if double the amount should come into the hands of the husband, the whole of it must be given up to his wife.

This opinion is equitable because, as the transaction is not an ordinary sale but made on account of the dowry, the husband should not profit by his wife's loss, for it is sufficient for him to be indemnified, and not to acquire any gain.

17. Paulus, On Sabinus, Book VII.

In matters relating to the dowry, the husband is responsible for fraud as well as negligence, because he received the dowry for his own benefit; he must, also, exercise the same diligence which he manifests in his own affairs.

(1) Where property which has been appraised was given by way of dowry, and the marriage does not take place, it must be considered what can be recovered, the property itself, or the valuation of the same. It seems to have been the intention of the parties that the appraisement should only be made if the marriage takes place, because there was no other consideration for the contract. Hence the property should be recovered, and not its value.

18. Pomponius, On Sabinus, Book XIV.

If you have received, as dowry, certain slaves whose value has been appraised, and an agreement was entered into that, in case of a divorce, you would return other slaves appraised at the same value, Labeo says that the offspring of these slaves will be yours, because the slaves were at your risk.

19. Ulpianus, On Sabinus, Book XXXIV.

Even if the dowry is given to another person by order of the husband, the latter will still be obliged to return it.

20. Paulus. On Sabinus, Book VII.

Julianus says that the following stipulation is valid, namely: "You will give me such-and-such a sum by way of dowry when you die," because it is customary to make an agreement that the dowry shall not be given by the wife during her lifetime. I did not hold that this is a similar instance, for it is one thing to postpone the collection of what is due, and another to stipulate in the beginning for it to be paid at a time when the marriage would not exist. This opinion conforms to that of Aristo, Neratius, and Pomponius.

21. Ulpianus, On Sabinus, Book XXXV.

It is settled that a stipulation made on account of a dowry, and which contains the condition, "If the marriage should take place," can only be a ground for legal proceedings where the marriage is solemnized; even though the condition may not have been stated. Wherefore, if notice of repudiation is served, the condition of the stipulation is said not to have been fulfilled.

22. Paulus, On Sabinus, Book VII.

And even if the woman should afterwards marry the same man, the stipulation will not recover its force.

23. Ulpianus, On Sabinus, Book XXXV.

But, for the reason that it is not necessary to insert this addition in the stipulation for the dowry, we hold also that it is not necessary to mention it when the dowry is delivered.

24. Pomponius, On Sabinus, Book XV.

Where a daughter under paternal control, who is about to marry, gives a dowry to her future husband out of her own peculium, of which she has the management; and then, while the peculium remains in the same condition, a divorce takes place, the dowry can be lawfully repaid to her, just as a debt from the peculium of any other debtor.

25. Paulus, On Sabinus, Book VII.

A woman who was about to marry a man who owed her Stichus, the slave, made an agreement with him as follows: "Instead of Stichus whom you owe me, consider that ten aurei are given you by way of dowry," in accordance to the rule that has been established that one kind of property can be given for another, and the parties be released from liability; the ten aurei will be deemed to have been bestowed by way of dowry, because a change of dowries can be made by agreement.

26. Modestinus, Rules, Book I.

We hold that a dowry can be changed while the matrimonial condition exists, only where it will be an advantage to the woman, if the money is changed into property, or property is changed into money. This rule is generally adopted.

27. Ulpianus, On Sabinus, Book XXXVI.

When this is done, the land or the personal property becomes dotal.

28. Paulus, On Sabinus, Book VII.

A father cannot render the condition of his daughter worse after marriage, because the dowry cannot be returned to him without his consent.

29. Ulpianus, On Sabinus, Book XXXVI.

Where a father promises a dowry for his daughter, and bequeaths it, if he leaves it to her husband should it be considered whether the legacy is valid or not? I do not think that it is valid, for when a debtor bequeaths to a creditor what he owes him, the legacy is void. If, however, he makes the bequest to his daughter, the legacy is valid, for the dowry was due to the husband on account of the promise, and the legacy is due to the daughter. If the daughter should prove that the testator intended to double the legacy, she will be entitled to both, the dowry which her husband has a right to collect and the legacy on account of the bequest.

But if the testator intended that she should have one or the other of these, and the woman claims the legacy, and is met by an exception on the ground of bad faith, the heir will not be compelled to pay her the legacy, unless she indemnified him, on this account against her husband bringing an action based on the promise made.

Where, however, the husband institutes proceedings, it will not be necessary for her to indemnify the heir, but where the woman brings an action after him, she can be barred by an exception because the dowry has already been paid.

30. Paulus, On Sabinus, Book VII.

It must be held that a dowry given at the time of a former marriage does not become one where a subsequent marriage takes place, unless this is the intention of the parties; still, we always presume that this was their intention, unless some other agreement is proved to have been made.

31. Papinianus, Opinions, Book IV.

Where no divorce, but only a quarrel occurs, a dowry of the same marriage will continue to exist.

32. Pomponius, On Sabinus, Book XVI.

If a husband should, with the consent of his wife, sell stone obtained from quarries on the dotal land, or trees which are not classed as profits, or buildings situated on the premises, the money received from the sale will be considered as forming part of the dowry.

33. Ulpianus, On Sabinus, Book VI.

Where a stranger who promised a dowry becomes insolvent, the husband will be to blame for not having brought suit against him, especially if he promised the dowry through compulsion, and not voluntarily. For if he donated the property, the husband should be excused for not having pressed the donor for payment, against whom he could have obtained a judgment, to the extent of his resources, if he had brought suit; for the Divine Pius stated in a Rescript that where persons are sued on account of their liberality, they should have judgment rendered against them for the full amount that they are able to pay.

But if the father, or daughter herself made the promise, Julianus says in the Sixteenth Book of the Digest that, even if the father made it the risk must be borne by the husband, which opinion should not stand. Therefore, the woman should bear the risk, for no judge will patiently listen to a woman who alleges that her husband did not press her father, who had promised her a dowry out of his property, for the payment of the same; and still less, where he did not bring an action against her. Hence Sabinus very properly holds that where the father or the woman herself promised a dowry, the risk should not be borne by the husband; but where the debtor makes the promise, the risk must be borne by the husband; and where someone else does so, by way of donation, the party who was benefited will be responsible.

We understand, however, that the advantage will accrue to the woman to whom the benefit of the property belongs.

34. The Same, On Sabinus, Book XXXIII.

A mother gave an utensil of gold for the use of her daughter; the father then gave the said utensil by way of dowry to the husband of the girl; and her mother afterwards died. If the father gave the article by way of dowry, without the knowledge or consent of his wife, it will belong to the heir of the mother, and he can bring an action to recover it; and because the property is evicted it is held that that much less of the dowry has been given by the husband, who will be entitled to an action against his father-in-law.

35. The Same, On Sabinus, Book XXXV.

Where a husband, for the purpose of renewing an obligation makes a stipulation with reference to a dowry promised by a father, or by anyone else, the dowry begins to be at his risk, just as it was formerly at the risk of the woman.

36. The Same, On Sabinus, Book XLVIII.

The debtor of a woman, by her order, bound himself to pay the money to her husband, and the latter then released him by order of his wife. The loss was sustained by the woman. In what way should we understand this? Should it be on the ground of the dowry, or for some other reason? The decision seems to have been made with reference to the debtor, who gave the promise to pay the dowry.

It must be ascertained whether this was done before or after the marriage; for it is held to be a matter of importance whether the discharge was given after the marriage took place, since if the dowry was already constituted, the husband will lose it by discharging the debtor. If, however, this was done before the marriage was celebrated, the dowry is held not to have been constituted.

37. Paulus, On Sabinus, Book XII.

The woman does not lose her right of action unless the marriage took place, for if it did not, the debtor will remain liable to her.

38. Ulpianus, On Sabinus, Book XXVIII.

It certainly should be considered whether the woman will be liable to her husband if she ordered him to discharge her debtor. And I think she will be liable to an action on mandate, and that this right is transformed into a dowry, because the woman is liable to the said action, and because she is held to have lost her property in consequence. If, however, she desires to bring an action on dowry, she ought to set off against her own claim what she has ordered her husband to do.

39. The Same, On the Edict, Book XXXII.

If a female slave should give property, as dowry, to a male slave, and afterwards, during their marriage, both of them obtain their freedom, without being deprived of their peculium, and continue in the marriage relation; the matter will be arranged in such a way that if anything remains of what was bestowed as dowry while they were in servitude, it will be held to have been tacitly converted into dotal property, so that the appraised value of the same will be due to the woman.

(1) Where a woman marries an eunuch, I think that a distinction should be made where he has been absolutely castrated, and when he has not, for if he has been absolutely castrated, you may say that the dowry does not exist; but where this has not been done, for the reason that marriage can exist, the dowry is valid, and an action to recover it will lie.

40. The Same, On the Edict, Book XXXIV.

The Divine Severus stated in a Rescript to Pontius Lucrianus that: "If a woman who has given a dowry, returns to her husband after having been divorced, without the annulment of the marriage contract, the magistrate before whom the matter is brought should have no hesitancy in deciding in her favor; as she certainly did not intend to return to the matrimonial condition without being endowed, and he must discharge his judicial duty just as the dowry had been renewed."

41. Paulus, On the Edict, Book XXXV.

Where a dowry is promised, all the parties are liable, no matter to what sex or condition they may belong.

(1) Where the marriage does not take place, suit cannot be brought on the stipulation, for the acts, rather than the words of the parties, should be considered.

(2) A dowry is also constituted by the release of a creditor, when the husband, who is a debtor, is discharged for the purpose of constituting a dowry.

(3) Where a dowry is promised, under a condition, by a debtor of the woman, and afterwards, before the husband can demand the dowry, the debtor ceases to be solvent, it is settled that the loss must be borne by the wife, for the husband is not held to have accepted the claim at a time when he could not collect it. If, however, the debtor was insolvent at the time that he made the promise under a condition, the loss must be sustained by the husband; because he is held to have knowingly accepted the claim as it was at the time when the obligation was incurred. (4) Where a debtor promises a dowry to a woman, and afterwards makes her his heir; Labeo holds that the circumstances are the same as if the woman herself had promised the dowry. Julianus also approves this opinion; for he says it would not be just for a judgment to be rendered against him on account of money which she herself owes, and it is sufficient that she should be released from liability.

42. Gaius, On the Provincial Edict, Book XL

Where property which can be weighed, counted, or measured, is given by way of dowry, this is done at the risk of the husband, because it is given to enable him to sell it at his pleasure; and when the marriage is dissolved, he must return articles of the same kind and quality, or his heir must do so.

43. Ulpianus, Disputations, Book III.

Although a dowry may be constituted by the release of the husband from liability for a debt; still, if this was ante-nuptial, and the marriage did not take place; Scævola says that, having been made in consideration of marriage, which did not occur, the release is void, and therefore the obligation remains unimpaired. This opinion is correct.

(1) Whenever a stranger releases a debtor for the purpose of constituting a dowry, and the marriage does not take place, the release will be of no effect, unless it was made because the creditor wished to donate the entire sum to the woman; for then it must be held that it was received by her through a fictitious delivery and then transferred to her husband. The right to a personal action for its recovery cannot, however, be acquired by the woman through the agency of a free person.

It is clear that, if the marriage takes place and is afterwards dissolved, the woman will have the right to claim the dowry, unless the stranger has released the husband from liability; and he himself will be entitled to an action for recovery, if the marriage should for any reason be dissolved, for then the woman will not have a right to any such action. In accordance with this, where a dowry is constituted by the release of the husband from liability, and the marriage takes place, the result of the suit for the recovery of the dowry will be that, if the obligation from which the husband is released is unconditional, it will not be restored to its former condition; but the dowry must be paid in accordance with what is customary. But where the obligation was limited to a certain time, it should be restored to its former condition, if the time to which it is limited did not elapse before the marriage was dissolved, and if the debt was secured the security should be renewed.

In like manner, if the obligation which was turned into a dowry is conditional, and a divorce takes place while it was pending, the better opinion is that the obligation ought to be restored under the same con-

dition. Where, however, the condition was fulfilled during the existence of the marriage, the time during which the money can be demanded should date from the day of the divorce.

44. Julianus, Digest, Book XVI.

If a father should promise a dowry for his daughter, and emancipates her before the marriage takes place, he will not be released from his promise; for even if the father should die before the celebration of the marriage, his heirs will still remain liable on account of his promise.

(1) Where a woman has a son under paternal control as her debtor, and she promises a dowry to his father as follows: "What you owe me, or what your son owes me, shall be yours as my dowry," she is not bound; but the result will be that anything that she can recover from the father in an action De Peculio will be included in her dowry.

Marcellus says that if, after this, she wishes to bring an action either against the son or the father, she will be barred by an exception on the ground of a contract entered into; but if she should bring an action on dowry, she can recover whatever was found to be in the peculium when the dowry was promised, and if it was promised after the marriage took place, the appraisement of the peculium must be made at the time that the nuptials were celebrated.

45. Tryphoninus, Disputations, Book VIII.

Where a woman who is about to marry a son under paternal control, who is her debtor, promises, by way of dowry only the right of action which she has for his peculium, the amount that is due to her on this account at the time of the marriage must be taken into consideration.

(1) Where, however, being about to marry another person, she directs the said son, who is her debtor, to promise her dowry out of his peculium; the time when the dowry is promised must be taken into account so that the amount of the peculium may be estimated.

46. Julianus, Digest, Book XVI.

Just as where a slave, having made a stipulation, acquires property for his master without the consent of the latter, so an obligation will be acquired for his master, if he permits a dowry to be promised in his master's name. The latter, however, will not be responsible for any risk, or for negligence, if the debtor of the woman promises the dowry.

A dowry is also constituted by the delivery of the dotal property to a slave or a son under paternal control, but neither the master nor the father will be liable either for risk or for negligence. Therefore, I say that this dowry will be at the risk of the woman, until either the master or the father ratifies the promise or donation; and therefore during the continuance of the marriage the property which was delivered can be recovered by a personal action. Moreover, it can be recovered by an action for an indeterminate amount, in order that the party may be released from his promise.

(1) If a woman, who is about to marry her debtor, promises him a dowry in the following words: "You shall have, as my dowry, what you owe me, or the Sempronian estate," whichever of these the woman selects will be her dowry, and if she prefers that the debt shall remain in the hands of her husband, by way of dowry, she can protect herself by an exception against him if he brings an action for the estate. And if she gives the estate, she can collect the money due her from her husband.

(2) Where a father, erroneously thinking that he is indebted to his daughter, promises her a dowry, he will be liable.

47. The Same, Digest, Book XVIII.

Where a slave bestowed by way of dowry before marriage has any property which was given or bequeathed to him previously, the dowry will be increased in the same manner as in the case of the crops of a tract of land delivered before marriage.

48. The Same, On Urseius Ferox, Book II.

A stipulation was entered into in the following terms: "You promise to pay ten aurei, by way of dowry, during the next year." The question arose from what date the year should be reckoned, whether from the day the stipulation was made, or from that when the dowry took effect, that is, the day of the marriage. The answer was that the year should be reckoned from the day of the marriage, for if we held otherwise, and the marriage did not take place within the year, the dowry could be considered to be due on account of the obligation.

(1) A father-in-law made a bequest to his son-in-law as follows: "My heir shall give a hundred aurei to Lucius Titius on account of my daughter." The son-in-law should claim this money, and when it is collected it ought to be received as a legacy; but Proculus is of the opinion that if a divorce takes place, it must be restored to the woman by means of an action on dowry; and, nevertheless, it becomes a part of the dowry. Julianus states in a note that an action of this kind should not even be refused a daughter, if she wishes to bring it.

49. The Same, On Minicius, Book V.

A certain man entered into a stipulation with a party concerning a sum of money which the latter wished to give as a dowry to his wife, and he then released him from liability for the same. The question arose whether or not this money constituted part of the dowry. The answer was that, if the husband had not released the promisor and he had become insolvent, we should inquire whether the money was not collected on account of the negligence of the husband, but as the husband released the debtor, he must, by all means, assume the entire responsibility; for the case is the same as if he had received the money, and then presented it to the promisor.

50. Africanus, Questions, Book VIII.

A woman gave a tract of land as her dowry, and, a divorce having taken place, she returned to her husband, and agreed with him that he should receive ten aurei by way of dowry, and give her back the land.

The ten aurei were paid, but she died during marriage before the land was returned. The matter is one involving good faith, and, in compliance with the contract, the land can be recovered, since it was held by the husband without any consideration.

(1) This point will seem perfectly clear if reference be had to the action on pledge. For if I should transfer to you the Cornelian estate by way of pledge, and afterwards convey to you the Titian estate, under the agreement that you will restore the Cornelian estate to me, I think that there is no doubt whatever that I can immediately and properly bring an action on pledge against you, for the recovery of the Cornelian estate.

51. Ulpianus, Opinions, Book II.

Where property which a father has given to his emancipated daughter is afterwards given for her by way of dowry, with her consent, the dowry is held to have been given by the daughter, and not by the father.

52. Marcianus, Rules, Book III.

Whenever a husband returns property to his wife in a suit for the recovery of her dowry, he must surrender whatever he obtained in this way, not only where the land given as dowry was appraised, but also where it was not, because the land was included in the dowry; and likewise if she promised to pay double damages in case of eviction, even where she was not obliged to do so.

53. Neratius, Parchments, Book III.

A man wished to make a present to his wife, and a debtor of hers, who was not solvent, promised her a dowry. The husband will only be responsible to the extent that the debtor was solvent, and if the latter should acquire anything which might enable him to meet his obligations, the responsibility will increase in proportion to the amount which he acquired. And it will continue to exist, even if he afterwards became more indigent because when the dowry was promised, the donation consisted only of what could not be collected from the debtor, and when the latter became solvent, the obligation still persisted, on account of the donation; since the matter is in the same condition as it would be if the debtor had been wealthy at the time when the dowry was promised.

54. Gaius, On the Edict of the Urban Prætor; Title, "Purchasers of Estates."

Property purchased with money belonging to a dowry is held to be dotal.

55. Paulus, On Plautius, Book I.

Where liability is incurred by reason of a dowry, a surety given on this account will be liable.

56. The Same, On Plautius, Book VI.

A man, who owed the slave Stichus to a woman, was delegated by her to constitute her dowry, and, before the debtor made payment, Stichus died. As the debtor was not to blame in making payment, and the husband was not in default in taking action, the loss caused by the death of Stichus must be borne by the woman; although, even if her husband had been in default in making a demand for him, and if Stichus had died while in the hands of her husband, he would not be liable to an action on dowry.

(1) The dowry should be under the control of him who sustains the burdens of marriage.

(2) After the death of the father, the burdens of marriage immediately pass to the son, just as the children and the widow become subject to his authority.

(3) When it is said that the dowry is diminished by the necessary expenses under operation of law, this only applies where a tract of land given by way of dowry partially ceases to be dotal, but where the expenses are not refunded, a portion of the land, or all of it, may be retained. Where, however, expenses which amount to the value of the land are incurred at different times, Scævola says that it ceases to be dotal, unless the woman should voluntarily tender to her husband the amount of the expenses within a year.

If both money and land are included in the dowry, and necessary expenses have been incurred on account of the land, Nerva says that the expenses should be deducted from the money forming part of the dowry. But what if the woman should pay the expenses to her husband, will the dowry be increased, or will it be held to have been given intact? Where the dowry consists of land, the injustice of this would seem to be greater, according to the opinion of Scævola; for if it ceases to be dotal the husband could alienate it. Again, how can money paid in this way become dotal, or will not the money already be considered as part of the dowry? The better opinion is that the land will revert to its former condition of dowry, and that its alienation in the meantime will be prohibited.

57. Javolenus, On Plautius, Book I.

Where a woman is about to marry a son under paternal control, and promises a dowry to her father-in-law in the following terms: "Whatever your son owes me shall be yours as my dowry," I think that it makes a difference whether the obligation of the son or the right of action which the woman has against the father for property employed for his benefit, is referred to in the promise; for if what the son is required to pay is meant, all the money for which he is liable is included in the promise of the dowry.

If, however, what the father must pay out of the peculium for property employed for his benefit is referred to, an estimate should be made of how much that was at the time when the promise was given, and this sum will be considered to form the dowry for which judgment can be rendered against the father, in the name of the son, at the above-mentioned date. If, however, it is not perfectly clear which obligation the woman had in mind, the presumption is that she had reference to the debt of the son, unless it is perfectly evident that the contrary is the case.

58. Celsus, Digest, Book XIX.

If the betrothal has not yet been made, and you promise a dowry to Titius in behalf of Seia, at a time when she refused to marry him, and she should, notwithstanding, marry him afterwards, you will owe the dowry, unless another marriage should have taken place in the meantime.

(1) Where a woman entered into a stipulation with Titius for the female slave Pamphila, and, afterwards, being about to marry him, she permitted him to take as dowry what he owed her; even though Pamphila did not belong to him, would Pamphila, nevertheless, be included in the dowry, and would she be at the risk of the woman in case of her death? Or in case she should have a child, must it be returned to the woman?

If the first stipulation remained in force, the offspring of the slave should not be given up, unless it made a difference whether the husband had possession of the property which he owed at the time that the dowry was constituted (for it could be held that the property itself came into his hands), or did not have possession of it; as, if the latter was the case, the better opinion is that the release from the obligation should rather be considered to have come into his hands than the property itself, and therefore that the offspring of the slave is not due to the woman.

59. Marcellus, Digest, Book VII.

If a woman should promise a dowry as follows: "Ten aurei shall belong to you or to Titius as my dowry," in this instance, it may be said that she can give the sum to Titius, but her husband will always be liable for the dowry, just as if he had ordered it to be given to Titius. There is nothing extraordinary about this, since a woman who intends to promise a dowry to a man can be substituted by him to make the promise to another, although it is usually held that a woman will not be liable for her dowry to anyone else than to her husband, as in these instances the dowry is acquired by the husband; for we do not believe that she would have made such a promise when she was thinking about her marriage with Titius.

(1) When an heir is appointed to an entire estate, and is asked to deliver three-fourths of the same to a woman, and, under her direction, promises her husband, by way of dowry, what he owes her, I apprehend that he will not be liable. He will be liable, however, in the delivery of the estate, to assign to the woman all rights of action, both those in his favor and those for which he is bound; but he cannot assign these rights to anyone else than the party to whom he owes them on account of the trust.

Another might say that the husband could bring an action against him for an uncertain sum, to compel him to pay the estimated amount due under the trust. I cannot agree to this, for it is just that the debtor of the woman should only be liable for the amount which the husband can receive out of what is due. Still, in order that she may not be without a dowry, it must be said that a share of the estate left to her should be restored to her under the Trebellian Decree of the Senate, so that she herself may give her husband this as her dowry, because the trust and all its liabilities belong to her, and, on account of the extreme subtlety and necessity of the case, the substitution will be of no force or effect.

(2) You gave ten aurei, by way of dowry, for a woman who was thought to be free, and in this instance you will be entitled to an action to recover what you have given; just as if you had done this in behalf of a free woman, and the marriage did not take place. If the woman should marry, after having been manumitted, what you gave will only be a dowry, if you gave it with the intention that it should become a dowry when the marriage ceremony was performed. Therefore, if you gave the property as a present to the woman, her master will have a right to recover it; just as where a party is about to give something to a woman, and the latter orders it to be given to her husband.

60. Celsus, Digest, Book XL

I ask what sum a curator should consent to be given as dowry by his ward to a woman who is grown. The answer was that this depends upon the amount of his means as well as upon the rank of the woman and her husband, as reason may suggest.

61. Terentius Clemens, On the Lex Julia et Papia, Book III.

A curator may be appointed for the general management of property, or for the purpose of giving a dowry, and where a larger dowry is promised than is justified by the estate of the woman, the promise will be void by operation of law, because an authorization fraudulently granted is not held to be confirmed by the law. Still, the question should be asked whether the entire obligation is annulled, or only what was promised in excess of what should have been. It is more equitable to hold that that only is annulled which is superfluous.

(1) The said curator should deliver the property bestowed as dowry, but he cannot sell it to anyone, and give the price of the same, by way of dowry. But it may be doubted whether this is correct, for what if the ward cannot marry honorably unless she gives money as dowry, and this will be more advantageous to her? However, property which is given by way of dowry can very frequently be alienated, and the money become the dowry. In order that this question may be determined, if the husband prefers to receive the property as dowry, it is not necessary to inquire any farther; but if he is not willing to contract marriage unless money is given, as dowry, it then becomes the duty of the curator to appear before the judge who appointed him, so that, if proper cause is shown, even though the man is absent, he may permit the dowry to be constituted by the proceeds of the sale of the property.

62. Modestinus, Opinions, Book V.

Titia, a minor under twenty-five years of age, exchanged the fourth part of the estate of her mother, which she held in common with her brothers, and received a tract of land instead of her share, just as if a sale had taken place. This land, together with other property, she gave as dowry. I ask if complete restitution should be granted to her, and if she should receive her share of one-fourth of the estate; and should she return the land, what course must her husband pursue, or ought he to be content with the other property given by way of dowry?

I also ask, if he should die, and her heirs, as her representatives, should bring suit for complete restitution, and some of them should demand a fourth part of the estate, and others the land, whether the husband would be compelled to return the land, and remain satisfied with the other property of the dowry as his profit. Modestinus answered that there is nothing in the case proposed to justify the husband being deprived of the dowry, but the woman of her heirs should have judgment rendered against them for the actual value of the land, and the appraisement of the same should be made with reference to what it was worth at the time it was given by way of dowry.

63. The Same, On Discoveries.

When a stipulation for the return of a dowry is made by a stranger, it becomes operative the moment the divorce takes place, and the right of action obtained by the stipulator is not extinguished if the marriage should be renewed. Therefore, if the woman has no dowry at the time of the second marriage, the stipulator must again consent for the constitution of the dowry; provided that the said dowry which another party stipulated for with her permission is not derived from the woman herself, for then his consent will not be necessary.

64. Javolenus, On Cassius, Book IV.

Where a husband made no subsequent provision with reference to a dowry, if, after a divorce has taken place, the woman should marry another man, and afterwards, having again been divorced, return to her first husband, the dowry will be tacitly restored to him unimpaired.

65. Pomponius, On Quintus Mucius, Book V.

If either through a legacy or by inheritance, property of some kind should be acquired by a slave who is given as dowry, and the testator was unwilling for the said property to belong to the husband, it must be returned to the wife if the marriage is dissolved.

66. The Same, On Quintus Mucius, Book VIII.

If the usufruct of land, the ownership of which does not belong to my wife, is given to me by way of dowry by the owner of the same, it would be difficult, after a divorce, to determine how the right of usufruct could be returned to the woman; as we have stated that it cannot be transferred by the usufructuary to anyone but the owner of the property, and if it is transferred to a stranger, that is to say, to one who does not own the property, nothing passes to him, and the usufruct reverts to the owner of the land. Therefore, certain authorities very properly hold that, by way of remedy, the husband should be permitted to rent the usufruct to his wife, or to sell it to her for a nominal consideration, so that the right itself will remain with the husband, but the power to gather the crops will belong to the wife.

67. Proculus, Epistles, Book VII.

Proculus to his grandson, Greeting. Where a female slave marries, and gives her husband money, as dowry, whether she knows that she is a slave or not, she cannot make her husband the owner of said money, and it will still remain the property of the person to whom it belonged before it was given as dowry to her husband, unless he should have obtained it by usucaption. And not even after the woman has become free, while living with the same man, will she be able to change the condition of this money. Hence, not even after a divorce has taken place, can she legally bring an action based on her right of dowry, or a personal action to recover the money, but the party to whom it belongs can legally sue for it.

But if the husband has obtained a right to said money through usucaption after having had it in his possession, of course because he thought that the woman was free, I am confirmed in my belief that he has profited by the transaction, provided he obtained the right to the money by usucaption, before the marriage. I am of the same opinion where he obtained anything by means of said money before it became the dowry, provided he was not in possession of it, and was not guilty of fraud to avoid being in possession.

68. Papinianus, Questions, Book X.

The promise of a dowry is none the less valid where the father was ignorant in the beginning that the marriage had been performed, if he should afterwards consent to it; since every promise of a dowry is understood to be founded on the tacit condition under which the marriage is to take place. For where a girl less than twelve years of age has been married, as if she was older, her husband can demand the dowry when she, while still living with him, attains the age of twelve years.¹ While it is commonly stated that the promise of a dowry only has reference to first marriages, and that the obligation does not continue to exist if the woman marries the man to whom she promised the dowry after he has married someone else, it will then be operative when another marriage has intervened.

¹ At Common Law, there does not seem to have been any time at which a female could not be endowed, if her marriage was sanctioned by the Church, and took place with her father's consent; although the age of nine years was generally accepted as the limit under which the contract would not be valid, provided that the wife had not reached it at the time of her husband's death. "Issint que el soit passe I'age de neuf ans al temps de le mourant son baron, ou auterment el ne serra my endowe." (Littleton, Tenures, V.)

"But a Woman under the age of 9 years may be endowed ad Ostium (Ecclesiæ, or ex Assensu Patris, for oninis Consensus tollit Errorem." (D'Anvers, Abridgment of the Common Law, II, Page 652.) — ED.

69. The Same, Opinions, Book IV.

Where a woman, after a divorce, with the knowledge of her husband, promises as dowry lands of which she has been in possession for a long time, it is held to have been tacitly agreed that the dowry which has been promised shall not be claimed; and if the husband should bring suit for it, he can be barred by an exception on the ground of contract pleaded by the wife.

(1) Where a woman gave money due to her from Seius, together with the interest to accrue in the future, as dowry that has been promised, it is reasonable that any interest which may have accrued after the marriage should also form a portion of the dowry.

(2) It was decided, where it had been stipulated after a divorce, that the money constituting the dowry with the interest should not be paid after the date of the second marriage, because only the payment of the principal could be collected; that the interest for the intermediate time would be due.

(3) Where a woman was married during the absence of her husband, and conducted to his house, and in the meantime incurred no expense chargeable to the property of her husband, the latter cannot honorably demand interest on the dowry which was promised to reimburse him for the support of his wife.

(4) A son-in-law stipulated with his father-in-law for a dowry to be paid upon a certain day in accordance with the wishes of the latter, without having mentioned the property, or the amount of the same. It is established that the stipulation would be valid, without considering the wishes of the father-in-law; nor should the case be held to be similar to the one where a tract of land is not mentioned, and it is held that a bequest, or a stipulation of said land is void; as a great difference exists between the manner of constituting a dowry, and the uncertainty of the property to which it has reference, for the amount of the dowry can always be established in accordance with the resources of the father and the rank of the husband.

(5) Where a girl is formally contracted in marriage to the son of her guardian, with the consent of her father; a dowry can legally be constituted by the guardian in proportion to the wealth of the former, and the rank and birth of the girl.

(6) Where a dowry has been legally promised in behalf of a freedwoman by her patroness, the latter cannot retain the same if the freedwoman should prove ungrateful.

(7) Where a marriage is dissolved, and property which has been appraised and given by way of dowry is to be returned, the amount must be stated, but a sale is not contracted. Therefore, where the property is evicted, if the woman gave it in good faith, her husband will have no right of action; otherwise, she will be liable for fraud.

(8) Where property has been appraised and delivered by way of dowry, even though the woman may continue to use it, the ownership will be held to have passed to the husband.

(9) It is proper that the offspring of female slaves, given as dowry, should be considered a portion of the same; and therefore an agreement with the husband that the said offspring shall be held in common by him and his wife is void.

70. Paulus, Questions, Book VI.

Where doubtful questions arise, it is better to decide in favor of the dowry.

71. The Same, Questions, Book XXXII.

When a stranger promises a dowry in behalf of a woman, the latter must assume the risk. If, however, the husband takes charge of the claim, and collects the interest, it is held that the risk will be his.

72. The Same, Opinions, Book VIII.

A woman gave all her property as dowry. I ask whether her husband, as her heir, is obliged to be responsible for the debts of her estate? Paulus answers that where anyone retains all the property of a woman on account of a dotal obligation, he cannot be sued by her creditors, but that the promise of the property only applies to what remains after the debts have been deducted.

(1) Paulus holds with reference to dotal property, that even the father of the husband is responsible for fraud and negligence.

(2) Paulus also holds that, where a woman gives a dowry out of her own property, and causes her mother to make stipulations, she can afterwards alter the dotal instrument.

73. The Same, Sentences, Book II.

A person who is dumb, deaf, or blind, is liable on account of a dowry, because each of them can contract a marriage.

(1) While marriage exists, the dowry can be returned to the wife for the following reasons, provided she does not squander it, namely: in order that she may support herself and her children, or may purchase a suitable estate, or may provide sustenance for her father banished to some island, or may relieve her brother or sister who is in want.

74. Hermogenianus, Epitomes of Law, Book V.

Where a betrothed woman gives a dowry, and does not marry, or where a girl, in order to become a wife, gives it before she reaches the age of twelve years; it is held that the privilege which applies to personal actions should, by way of favor, as in the case of a regular dowry, be extended to include a personal action for recovery.

75. Tryphoninus, Disputations, Book VI.

Although the dowry becomes a part of the property of the husband, it nevertheless, in fact, belongs to the wife. It has, with reason, been decided that if she gave land which was not appraised as dowry, and, on account of this, a stipulation for double damages was provided, and the land should be evicted from the husband, the latter can immediately bring an action on the stipulation. Moreover, as it is to her interest that the property given by way of dowry should not be evicted, and because she herself suffers from the eviction because she ceases to possess what constituted the dowry; it is held that she is also entitled to the profits of the same while the marriage continues to exist, even though the ownership of the property is in the husband, and he sustains the burdens of matrimony.

76. The Same, Disputations, Book IX.

Where a father promises a dowry to his daughter by a donation mortis causa, the promise will be valid, for he will be bound just as if he had made it at the time of his own death. If, however, he should recover, why should he not be released from the obligation by means of a personal action, just as would be the case where someone else entered into a stipulation, or promised a dowry in behalf of another?

The case is similar where a personal action will lie to recover money which has been given, or to compel a party to release an obligation incurred mortis causa. The same cannot be said with reference to a woman, if she promised a dowry mortis causa, because a dowry is void, unless it can be used to defray the expenses of marriage.

77. The Same, Disputations, Book X.

Where a woman about to marry her debtor who owes her money at interest promises him, by way of dowry, what he owes her; the interest which has become due after the marriage has taken place does not constitute part of the dowry, because the entire obligation is cancelled; just as if all the debt had been paid to the woman, and she had given it by way of dowry.

78. The Same, Disputations, Book XI.

Where a woman having a right of usufruct in land belonging to her husband gives to him by way of dowry, although the usufruct no longer is hers, still, the husband is not entitled to it, because he is using his own land, as owner; but, by means of the dowry, he obtains the complete title to said land, and does not hold it separate from the usufruct, and he cannot lose it by non-user. Still, in case of a divorce, he must reestablish the usufruct in said land for the benefit of his wife. If, however, she should die during marriage, the husband is held not to have profited by reason of the dowry, because even if he had not married the woman, the usufruct, having been terminated by her death, would revert to the land, and therefore he would not be compelled to contribute to the funeral expenses of his wife.

(1) It is evident that if a father, who has a usufruct in a tract of land, gives it to his son-in-law by way of dowry, for his daughter, and she dies during marriage, he will have a right of action against his son-in-law for the re-establishment of the usufruct.

(2) If a woman constitutes a dowry for her husband by giving him the usufruct in her land, then the usufruct will, properly speaking, be attached to the person of her husband, and he will lose it by non-user. If this should happen, let us see whether the woman will still be endowed. If, indeed, the ownership of the land is in the woman, and the usufruct reverts to the same, nothing now remains of the dowry which can be recovered by him in an action on dowry, because he cannot be blamed for having lost the usufruct by non-user, since she herself has profited by it, and hence she will remain without a dowry.

But if the wife should alienate the property, and it should become more valuable without any advantage to her, she will still retain the right to her dowry, because the husband, who, when he could have enjoyed the usufruct, lost it by non-user, will be liable to an action on dowry. If, however, the usufruct continued to exist until the divorce took place, its restitution will be for the benefit of the woman, because although it does not immediately pass to her, still, it reverts to the property either for some price or consideration, and without any disadvantage to the owner. But where the husband did not lose the usufruct, his right to it will not be extinguished by the death of the wife.

But where a divorce takes place, let us see, in the first and second instances, whether the profits should be divided in proportion to the time of the year which has elapsed. This opinion should be adopted. The restitution of the usufruct, however, ought to be made so that it will be transferred to the woman who owns the land, and be united with the ownership of the same. Even if the woman is not the owner of the land, an action on dowry will, nevertheless, lie to compel the husband to relinquish the usufruct; for the wife will be liable to an action on sale to compel her to deliver it, whether she expects to obtain a certain price for it from the purchaser, or prefers to do him a favor, rather than leave the right with someone who is unfriendly to her, and to whom it has been transferred; which she is allowed to do by law.

(3) A wife gave an usufruct to her husband by way of dowry, and during the marriage she sold him the tract of land. The question arose what she would be entitled to recover in an action on dowry, if a divorce took place. I replied that it was important to inquire how much the land had been sold for; as, if an appraisement of the mere property was made, the woman, in an action on dowry, was entitled to recover the price of the usufruct. But what if the husband should die before issue was joined? His heirs would not be liable for anything. For even if anyone else appeared as purchaser of the property, the heir of the husband would be liable to the woman for nothing, and the usufruct would revert to the land. If, however, the whole tract was sold for as much as it was worth, and the usufruct was not understood to have been reserved, it would be held that the woman was entitled to the dowry during the existence of the marriage.

(4) Where a tract of land held in common was given by way of dowry, and the other joint-owner brought an action against the husband for partition, and the land was adjudged to him, the amount of the judgment against the joint-owner in favor of the husband would be the dowry, but if the land was adjudged to a stranger without any bidding, the dowry would be a part of the price for which the land was sold. But this would not be considered to take the place of the property, and, in case of a divorce, it would not be necessary to pay it all at once, but it should be paid within a specified time.

If, however, the land should be adjudged to the husband, that portion of it which had been given by way of dowry, would still remain dotal; but if a divorce took place, the other portion, on account of which the first, as dowry, came into the hands of the husband, must be returned; that is to say, he will receive as much, by way of price, from his wife as he had paid to her joint-owner on account of the judgment which was rendered against him.

If either of the parties should attack this as being unjust, neither should be heard, not the woman if she objects to receiving the other part of the land, nor the husband if he refuses to surrender it; but let us see whether, as long as the marriage is in existence, only that portion of the land which was given by way of dowry is dotal, or whether the other portion is not so likewise. Julianus says that only one of the portions is dotal, and I stated in court that only one of them should be considered such.

(5) Where anyone who is protected by an exception binds himself, through mistake, in a stipulation with a husband to pay him a sum of money by way of dowry, and does not do so, he can be compelled to pay him; and he will be entitled to a personal action for recovery against the woman or her father, dependent upon which of them substituted him on account of the amount which he did not owe, and which he either promised, or paid to the husband.

79. Labeo, Epitomes of the Last Works of Javolenus, Book VI.

A grandfather gave a dowry for his granddaughter, the daughter of his son, to his son-in-law, and then died. Servius denies that the dowry reverts to the father, and I agree with him, because it cannot be held to be derived from him, as he never owned any of the property.

(1) A father promised a hundred aurei to his daughter, by way of dowry, on condition that it should be paid when perfectly convenient. Ateius says that Servius gave it as his opinion, that the father should pay the dowry as soon as he could do so without subjecting himself to dishonor and infamy.

80. Javolenus, On the Last Works of Labeo, Book VI.

If the debtor of a woman should promise a dowry to her betrothed, the woman can bring an action for the money against her debtor before the marriage; and Labeo says that the debtor will not be liable to the husband upon this ground afterwards. This opinion is incorrect, because the promise is in suspense as long as the obligation remains in this condition.

81. Papinianus, Questions, Book VIII.

A father gave as dowry for his daughter a certain sum of money which he had borrowed, or for which he had incurred liability. As soon as this money was expended the dowry became profectitious.

82. Proculus, Epistles, Book V.

Where a woman directed her husband to give a certain sum of money which he owed her as dowry for their common daughter, and he did so, I think it should be considered whether he gave the dowry in his own, or his wife's name. If he gave it in his own name, he will still owe the money to his wife, but if he gave it in his wife's name, he will be released from liability to his wife.

83. Javolenus, On the Last Works of Labeo, Book VI.

If the debtor of a woman should promise her betrothed a dowry, she cannot collect the money from her debtor before the marriage, because the promise is in suspense as long as the obligation remains in this condition.

84. Labeo, Epitomes of Probabilities by Paulus, Book VI.

Where the promise of a dowry is involved, judgment should be rendered against the party who made it, without reference to his pecuniary resources. Paulus says that this is always true with reference to a stranger, but where a son-in-law claims the promised dowry from his father-in-law, while the connection between them exists, judgment will be rendered against the father-in-law in accordance with the amount which he is able to pay. If he brings an action after the marriage has been dissolved, I think that the amount to be paid will depend upon the circumstances and personal character of the parties. For what if the father-in-law had imposed upon his son-in-law by giving him reason to expect a dowry, when he knew that he was unable to furnish it, and had done this for the purpose of deceiving his son-in-law?

85. Scævola, Digest, Book VIII.

A father gave a tract of land as dowry for a daughter, and, having died, left the daughter the sole heir of his estate. She, having been pressed by the creditors, decided that it would be better to sell the tract of land which had been given by way of dowry, because it was less productive, and to retain the other tracts belonging to the estate, because they yielded a larger income. The husband gave his consent to this, provided there was no fraud in the transaction. I ask whether that part of the dowry which was included in this tract of land could be lawfully transferred to the woman during the marriage. The answer was that it could be, if the price of the same was paid to a creditor.

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TITLE IV. CONCERNING DOTAL AGREEMENTS.

1. Javolenus, On Cassius, Book IV.

It is lawful for an agreement to be made after marriage, even if none has previously been, entered into.

(1) Agreements made for the purpose of returning a dowry should be entered into by all the parties who have either a right to recover the dowry, or from whom it can be recovered, in order that one of them, who is not a party to the proceedings, will not be able to obtain any advantage from the magistrate who may be called upon to enforce the agreement.

2. Ulpianus, On Sabinus, Book XIX.

Where an agreement has been made that the dowry shall remain in the hands of the husband, no matter in what way the marriage may be dissolved, provided there are any children, Papinianus stated to Junianus, the Prætor, that in case the marriage was terminated by the death of the husband, it must be held that no agreement had taken place for the retention of the dowry, and that, under such circumstances, an agreement which was prejudicial to the dowry, should not be observed when the death of the husband takes place.

3. Paulus, On Sabinus, Book III.

Where an agreement is entered into which has reference to the time of a divorce, and a divorce does not take place, the agreement will not become operative.

4. Ulpianus, On Sabinus, Book XXXI.

If it should be agreed that the profits of property should be converted into a dowry, will the agreement be valid? Marcellus says in the Eighth Book of the Digest that such an agreement is not valid, for a woman by a contract of this kind almost becomes unendowed. He, however, makes the distinction that if a woman should give a tract of land as dowry, under the condition that her husband shall deliver to her the profits of the same, such an agreement is void; and the same rule applies if she gave an usufruct as dowry under a similar agreement. If, however, a contract should be made with reference to giving the profits, that is to say, that any profits which may be obtained shall compose the dowry, and the land, or the usufruct of the same is delivered in compliance with it, not with the understanding that the profits are to become dotal, but that the husband can collect the profits which will become a part of the dowry; he can be compelled by an action on dowry to deliver said profits. The profits will, therefore, form the dowry, and he can enjoy the interest obtained from them, as well as acquire what is added to the principal.

I think that, in both instances, consideration should be paid to the intention with which the dowry was given, so that if the wife gave a large dowry because she wished the income of the same to constitute it, and expected the husband to be content with the interest it might yield; it can be said that the agreement will be valid, for then the dowry is not unprofitable.

Suppose, for example, that the husband receives an annual income of forty aurei by way of dowry, while if such an agreement had not been entered into he would have received more than three hundred, would not it be of great advantage to him to obtain so profitable a dowry? And what shall we say if the agreement has been drawn up in such terms that the husband can turn the profits into a dowry, and that the wife must maintain herself and her family, and provide for them, and pay all their expenses? Why can you not hold that an agreement of this kind will be valid?

5. Paulus, On Sabinus, Book VII.

A contract cannot be made which will prevent the husband from taking action in case of the immorality of his wife, or which will permit him to collect more or less than the law allows under such circumstances; for the right to inflict public punishment cannot be annulled by a private agreement.

(1) Agreements of this kind should not be observed where reference is had to the recovery of property given or removed, because in the first instance, women are invited to steal, and in the second, the Civil Law is violated.

(2) If it should be agreed that the husband shall not bring suit for necessary expenses incurred, the agreement should not be observed, because expenses of this kind diminish the dowry by operation of law.

6. Ulpianus, On the Edict, Book IV.

Pomponius says that a husband cannot contract to give a guarantee only against fraud with reference to the dowry, which is provided for the benefit of married persons, although he can agree that he shall not be responsible for the claim of a debtor, who has promised him a dowry. Pomponius holds that he can agree that the dowry will be at the risk of the wife; and, on the other hand, stipulate that the dowry which is at the risk of the wife shall be at the risk of the husband.

7. Pomponius, On Sabinus, Book XV.

Where a dowry is given in behalf of a daughter, it is best for the son-in-law to make an agreement with both parties; although, in the beginning, when a dowry is given, the father can impose any condition which he wishes, without considering the person of the woman. But if, after the dowry has been given, he wishes to make an agreement, both parties must be considered when this is done, since the dowry has already been acquired by the woman. In this instance, the father either makes the agreement without his daughter, or alone, or he does so after haying called his daughter in, and the agreement will either benefit or injure no one but himself. If, however, the daughter alone enters into a contract by which the condition of her father becomes improved, it will also benefit him, since he can acquire property by means of his daughter, while a daughter cannot do this through her father. But where the contract made by the daughter in injurious, while it may prejudice her rights, it will in no way be disadvantageous to the father, unless he institutes proceedings together with his daughter. It must be said that the daughter can never, by making any agreement, cause the condition of her father to become worse, as in case she should die during marriage the dowry will revert to her father.

8. Paulus, On Sabinus, Book VII.

Where a son under paternal control marries while his father is insane, or is in the hands of the enemy, or where his daughter marries under similar circumstances, an agreement having reference to a dowry entered into with either must be made with each individually.

9. Pomponius, On Sabinus, Book XVI.

When an agreement is entered into providing that if a daughter should die during the lifetime of her father-in-law, her entire dowry shall be given to the latter, and if he should die, to his son, and if his son should also die, to the heir of the father-in-law; such a stipulation by an indulgent construction can be upheld as equitable.

10. The Same, On Sabinus, Book XXVI.

A grandfather, in providing a dowry for his granddaughter, agreed that it should never be claimed by himself, or his son, but that it could be claimed by any other heir than his son. The latter will be protected by an exception based on the contract, as we are permitted to provide for our heirs, and there is nothing to prevent our doing so for any certain person, if he should be our heir; but this does not apply to other heirs. Celsus held the same opinion.

11. Ulpianus, On the Edict, Book XXXIV.

Where a father promised a dowry, and agreed that it should not be claimed by him while he was living, nor, in any event, so long as the marriage continued to exist, the Divine Severus decreed that the agreement should be interpreted just as if it had contained the addition, "While he was living." For this is to be understood to have reference to paternal affection, and the wishes of the contracting parties, in such a way that the latter part of the agreement will be held to have reference to the lifetime of the father, as a different construction would separate the profits of the dowry from the expenses of marriage, which would be intolerable; and the result would be that the woman would be held to have no dowry. Hence it was brought about by this Rescript, that if the daughter should die while her father was living, or should be divorced without any blame attaching to her, the dowry could, by no means, be claimed by her husband, but that he could claim it if the father should die while the marriage existed.

12. Paulus, On the Edict, Book III.

Where a father gave a dowry, and agreed that if his daughter died during marriage, the dowry should remain in the hands of her husband; I think that the agreement must be observed, even if no children had been born.

(1) Among the agreements which are usually entered into before and after marriage, some are voluntary, as, for instance, where it is stated that the woman shall support herself with the promised dowry; and, as long as the marriage continues, the dowry cannot be demanded of her by her husband; or she can furnish him a certain sum for his support; or some other provisions similar to these may be made.

There are other agreements which relate to the law, for example, those which prescribe the way in which a dowry shall be returned when it is claimed; and, in cases of this kind, the will of the contracting parties is not always observed. If, however, it should be agreed that the dowry, under no circumstances, can be claimed, the woman will remain unendowed.

(2) Where a woman agrees that no more than half of the dowry can be demanded of her, and she stipulates for a penalty; Mela says that she should be content with one or the other of two things; either with an exception based upon the agreement with a release of the obligation of a penalty, or if she proceeds under the stipulation, she should be denied the right to. an exception.

(3) Where a tract of land which has been appraised is given by way of dowry, and the woman agrees that if it brings any more when sold, the surplus shall become part of her dowry; Mela says that such an agreement must be carried out, just as, on the other hand, she can agree to be liable for the deficiency in case the land should sell for less.

(4) If a wife should agree that whether a tract of land given by way of dowry sells for either more or less than the appraisement, the price that it brings shall constitute her dowry, this agreement must be executed; but if the property should sell for less, through the fault of the husband, the wife can recover the deficiency from him.

13. Julianus, Digest, Book XVII.

Moreover, if the land should not be sold, the appraisement of the same should be furnished.

14. Paulus, On the Edict, Book XXXV.

With reference to the time when the dowry should be returned, the law permits an agreement to be made fixing the day when this may be done, provided that the condition of the woman is not rendered any worse thereby:

15. Gaius, On the Provincial Edict, Book XI.

That is to say, it may be returned sooner.

16. Paulus, On the Edict, Book XXXV.

An agreement cannot be made for the dowry to be returned at a later date than that established by law; any more than it can be agreed that it shall not be returned at all.

17. Proculus, Epistles, Book XI.

Atilicinus to his friend Proculus, Greeting: "Where an agreement was made between a man and his wife before marriage, that, in case a divorce took place, the same time should be granted for the return of the dowry that was given for its bestowal; the woman gave the dowry to her husband five years after marriage. A divorce having taken place, I ask whether the husband should restore the dowry to his wife within five years, or whether he must do so within the time fixed by law?

Proculus answered with reference to the time of returning the dowry: "I think that by an agreement the condition of the woman can be improved and cannot be made worse; therefore, if it is provided that the dowry shall be returned in a shorter time than that established by law, it should be carried out, but if it is agreed to return it after a longer time, such a contract is not valid."

As to this opinion, it is proper to state that if it is proved by the agreement that, after divorce, there should be the same delay for the return of the dowry as there was for its delivery after marriage, and if this delay in returning it was shorter than that authorized by law, the agreement will be valid, but if it is longer, it will not be.

18. Julianus, Digest, Book XVIII.

Although, during the continuance of the marriage, the husband and wife may be unable to agree to defer the restoration of the dowry for a longer time than is authorized by law; still, after a divorce, if there was good reason for the agreement, it should be kept.

19. Alfenus, Epitomes of the Digest by Paulus, Book III.

It is different where a father, in promising a dowry for his daughter, agrees that it shall be paid by him in one, two, three, four, and five years; and states that it shall be returned in the same manner, if the marriage should be dissolved, for this agreement will be valid if the daughter should become the heir of her father, and if she was present at the time when the contract was made.

20. Paulus, On the Edict, Book XXXV.

An agreement made on account of property given or appropriated by the wife, or expenses incurred, will be valid; that is to say after a divorce has taken place.

(1) Where a stranger is about to give a dowry out of his own property, he can stipulate for and agree to anything that he chooses even without the knowledge of the woman; for he is imposing conditions upon what belongs to him, but after he has given the dowry, he can only enter into an agreement concerning it with the consent of the woman.

(2) If it should be agreed that the dowry cannot be demanded either from the wife or from the father, the heir of either of them will not -be entitled to an exception. If, however, the agreement was that it should not be claimed during the marriage, in the lifetime of the father, it can be claimed immediately after his death; and if the husband should not claim it, he will be liable on the ground of negligence if the dowry could be exacted; unless the marriage was dissolved before he had the power to demand it.

21. Julianus, Digest, Book XVII.

Where a woman promises a certain sum of money, by way of dowry, and, instead of it, gives slaves under the condition that they shall be at her risk, and if any children are born to them they shall belong to her, the agreement must be carried out; for it is settled that a contract can be made between husband and wife setting forth that a dowry consisting of a sum of money may be changed and transferred to other property, if it will be advantageous to the woman.

22. The Same, On Urseius Ferox, Book II.

A certain man received a tract of land from his wife by way of dowry, and it was agreed between them that the husband should give the rent of said land to his wife as annual income. The husband afterwards leased the land to the mother of the woman to be cultivated for a certain amount of rent, and she died without having paid it, leaving her daughter her sole heir, and then a divorce took place. Her husband brought suit against the woman for the rent which her mother owed him, and it was decided that an exception should not be granted her, as if the agreement had not been made between her and her husband that the said rent should be given to her for her maintenance; since, under some circumstances, donations may legally be made between husband and wife, for what is given by way of annual income is a species of gift.

23. Africanus, Questions, Book VII.

A father, at the time that he gave a dowry to his daughter, agreed that if she should die leaving one or more children, the dowry should be returned to him, after deducting the third part of the same; or, after his death, that it should be given to one or the other of the children who were under his control. This was afterwards expressly stipulated. After the death of the father, the woman died during marriage, leaving children. The question arose whether the children could claim two-thirds of the dowry, in accordance with the stipulation. I answered that they could, for the effect of the stipulation was that if the woman should die during marriage, her dowry should be returned to her father, and the same rule applies as where a stipulation was entered into in the following terms: "If a ship comes from Asia, do you agree to pay me a certain sum of money, or, after my death pay it to Lucius Titius?" for if the ship should arrive after the death of the stipulator, the money will be due to my heir.

24. Florentinus, Institutes, Book III.

Where it was agreed between husband and wife that a certain portion of the dowry, or all of it, should be retained in case of the birth of one or more children; the agreement must be carried into effect, even on account of children who had been born before the dowry was given or increased, for it is sufficient for them to be born during the marriage with reference to which the dowry was bestowed.

25. Ulpianus, Opinions, Book I.

With reference to the return of a dowry, where it was agreed to do so if the girl died before marriage, it is also held that the husband agreed not to claim it, and that the father had obtained the right to transmit to his heir an exception on the ground of contract.

26. Papinianus, Opinions, Book IV.

It was agreed between a father-in-law and his son-in-law that if the daughter should die leaving a child one year old, the dowry would belong to her husband, but if the child should die during the lifetime of its mother, the husband could retain only a portion of the dowry where the wife died during marriage. The woman lost her life by shipwreck at the same time as her child, who was one year old. For the reason that it appeared probable that the child died before its mother, it was decided that the husband could retain a portion of the dowry.

(1) A husband can retain a dowry granted to a daughter by an agreement, and if he should fail to do so through mistake, the daughter, who is the sole heir to her father and an heir to a part of her mother's property, can, it is not wrongly held, assert a preferred claim to the dowry improperly paid by her father, in case of the partition of her mother's estate.

(2) Where it is agreed between a father and a son-in-law that the dowry shall be returned to the father, in case the daughter should die during marriage without leaving any children, it must be understood to have been agreed between the parties that if the daughter should die leaving children, the dowry shall be retained, and that no portion of the same shall be separated from it on account of any addition which has been made thereto, if no agreement to the contrary was made.

(3) It was agreed that a wife should be transported at the expense of her husband wherever she went, and therefore in strict pursuance of this agreement the woman followed her husband, and sought him in the province where he was serving as centurion. If the husband did not keep the agreement, although a direct action would not lie, still an equitable action in factum should be granted.

(4) Where a daughter, who was promising a dowry for herself, inserted in the contract that if she should die during marriage without leaving any children, her dowry should be paid to her mother; this agreement of her daughter confers no right of action upon the mother. Still, if the heir of the daughter should pay the money composing the dowry, and the husband should bring suit for it, an exception can be pleaded against him for claiming the dowry in violation of his own agreement.

(5) A father stipulated for the dowry to be given to him, if his daughter should die during marriage. While the marriage was still in existence, the father was convicted of a capital crime. The condition of the stipulation would not take effect if a divorce took place, or the marriage was dissolved by the death of the husband. If, however, the woman should die during marriage, the right to an action on dowry arising from the stipulation would be acquired by the Treasury. But if the parties should be remarried after a divorce, the stipulation would not become operative for the benefit of the Treasury, even though the daughter died during the second marriage, as it had reference to the first marriage.

27. The Same, Definitions, Book I.

If a woman who has children should return to her husband through duplicity, after a quarrel; as for instance, where, through venal motives, she agrees that she shall not be endowed; this agreement being contrary to custom ought not to be enforced, in accordance with the circumstances of the case.

28. Paulus, Questions, Book V.

The question is asked whether, where a woman, either before or after marriage, agrees that her creditor shall be satisfied with the crops of land which she gave by way of dowry, will the agreement be valid? I say that it will be valid, if it is made before marriage and that in this way the dowry will be diminished; but if it is made after marriage, as the profits of the dowry are intended to relieve the matrimonial burdens, the husband practically consents to pay the creditor out of his own property, and the transaction will be a mere gift.

29. Scævola, Opinions, Book II.

Where a husband received certain lands which had been appraised, by way of dowry, and, during the existence of the marriage, with the intention of deceiving his wife, agreed that the said lands should not be considered as appraised, so that he could render them less valuable without running any risk; the question arose whether the lands which had been appraised should remain so according to the dotal estimate, and the husband be liable to their deterioration. I answered that the contract would not be affected by what was proposed, because this was done during marriage, provided the dowry was not diminished in value; still, if the land should be deteriorated after the contract was made, the woman would be entitled to a dotal action on this ground against her husband.

(1) Titius gave a dowry for a woman, and made a stipulation with reference to it in case of death or divorce. A divorce having taken place, Titius died without claiming the dowry, and the woman renewed her marriage with the consent of the heir. The question arose whether the heir could demand the dowry on the ground of the stipulation. I answered that the heir of Titius would be barred by an exception on the ground of contract, if he had given his consent that the amount which he could recover on account of the stipulation should become the dowry of his mother, when the marriage was renewed.

(2) A woman, who gave property as dowry, agreed that if she died during marriage it should be returned to her brother, and the latter made a stipulation to that effect. The wife, at her death, bequeathed certain dotal property to her husband, as well as to others, and she also manumitted certain slaves who formed a part of the dowry. The question arose whether the husband was liable to the brother for the property which the woman bequeathed, and the slaves which she manumitted. I answered that there was nothing in the facts stated why he should not be, as the heirs of the deceased, as well as the legatees were liable on account of the manumission.

30. Tryphoninus, Disputations, Book X.

Bæbius Marcellus promised Bæbius Maryllus a hundred aurei, by way of dowry for his daughter, and it was agreed between them that the dowry should not be claimed during the existence of the marriage; or, if the daughter should die during marriage without leaving any children, after the death of her father, half of the dowry should remain in the hands of Maryllus, and half of it should be returned to the brother of the woman; and these matters were also set forth in a stipulation.

Marcellus having died leaving a son and a daughter, and having bequeathed the entire dowry to his daughter, Maryllus divorced his wife by whom he had a daughter, and his wife died, leaving her brother and her daughter heirs to equal shares of her estate. Maryllus brought suit before Petronius Magnus, the Prætor, for the entire dowry, against the son of Marcellus, who was his heir, 9n the ground of the promise of the same; alleging that it had been agreed upon between the two parties that if the woman died without leaving any children, half of the dowry should remain in the hands of her husband, and that the proper construction of the agreement was that the entire dowry should belong to him if the woman should have a son or a daughter.

On the other hand, it was held that the exception based on the common agreement was also advantageous to the heir, but that, in the case proposed, the heir being, as it were, the representative of the deceased, could not protect himself by means of an exception on the ground of contract; but that, if he himself had been sued for the dowry during the lifetime of the woman, he might have barred Maryllus by this exception, because a divorce had taken place, and he could interpose the same defence, even after the death of his sister. Therefore it was decided that the heir must be released from liability for the said claim, but that there should be nothing in this opinion to prevent the assertion of the claim based on the trust, under the terms of which Maryllus was entitled to half of the estate as the heir of his wife, obtained through his daughter by hereditary right.

31. Scævola, Questions, Book III.

If it is agreed between husband and wife that the profits of the last year of marriage, which have not yet been obtained, shall be applied for her benefit, a contract of this kind is valid.

32. Javolenus, On the Last Works of Labeo, Book VI.

A wife gave to her husband, by way of dowry, land appraised at a hundred aurei, and then made an agreement with him to return the land to her at the same price in case of a divorce. The husband afterwards sold the said land for two hundred aurei, with the consent of his wife, and then a divorce took place. Labeo thinks that the husband should have the privilege of paying her two hundred aurei, or of returning the land, whichever he may choose; and that the obligation arising from the agreement should not be released. I think that Labeo gave this opinion because the land had been sold with the consent of the woman, otherwise it should, by all means, be returned.

(1) If a father promises a certain sum of money as a dowry for his daughter, and it is agreed that he shall not be compelled to pay it against his consent, I think that nothing can be collected from him; because the clause contained in the contract which stated that he could not be compelled to pay it, should be held to refer to the dowry.¹

¹ Such a contract would of course, be void, for the reason that a dowry could not be constituted in such a way as to render its payment dependent upon the mere caprice of the donor. — ED.

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TITLE V. CONCERNING LAND GIVEN BY WAY OF DOWRY.

1. Paulus, On the Edict, Book XXXVI.

The Lex Julia, having reference to land given by way of dowry, sometimes does not apply; for instance, where the husband fails to make provision against threatened injury, and the neighbor is placed in possession of the premises given as dowry, and is afterwards directed to return the same. In this case the neighbor becomes the owner, because the alienation is not a voluntary one.

(1) But it is possible for the entire title to the land to pass to another, as, for instance, to the heir of the husband, but still, with the same condition that it cannot be alienated.

2. Ulpianus, On Adultery, Book V.

If a husband should be reduced to slavery, cannot his owner alienate his land? I think the better opinion is that he cannot.

(1) Wherefore, if the property of the husband should be confiscated, the sale of the land would, nevertheless, be prevented; even though the Treasury is always held to be a good and solvent successor.

3. Paulus, On the Edict, Book XXXVI.

Where a tract of land is devised to slaves who form part of the dowry, according to the Lex Julia it also becomes dotal.

(1) Land given as dowry cannot be alienated whenever the wife is entitled to a dotal action, or where one should by all means be brought.

4. Gaius, On the Provincial Edict, Book XL

The Lex Julia, which has reference to land given by way of dowry, and provides that a husband cannot encumber or alienate it, ought to be more broadly interpreted, so as to apply as well to a betrothed person as to a husband.

5. Ulpianus, On All Tribunals, Book II.

Julianus states in the Sixteenth Book of the Digest that a husband cannot lose any servitude attaching to the land, or impose any new ones upon it.

6. The Same, On Adultery, Book V.

Freedom from a servitude due to an urban estate subject to dowry cannot be granted by the husband, for fear that by this the condition of the property may be deteriorated.

7. Julianus, Digest, Book XVI.

Where a husband acquires a tract of land that belongs to Titius, and which is subject to a servitude for the benefit of real estate subject to dowry, the servitude becomes confused. But if he returns the said land to Titius, without renewing the servitude, the husband will be to blame, and, in this instance, he must pay such damages as may be assessed by the court. Where, however, the husband is not solvent, prætorian actions will be granted against Titius in favor of the woman for the re-establishment of the servitude.

(1) When, however, a woman gives as her dowry land to which a tract belonging to her husband owes a servitude, it comes into the hands of the husband without the servitude; and therefore it cannot be held that the rights attaching to said land have become deteriorated through the act of the husband. What then should be done? It is the duty of the judge, who is to decide with reference to the dowry, to order the land to be returned to the woman, or to her heir, and the servitude to be re-established.

8. Alfenus, Epitomes of the Digest by Paulus, Book III.

A certain man requested his wife to cut down an olive plantation which was on the dotal land, in order to replace it with a new one. The man afterwards died after bequeathing the dowry to his wife, and it was decided that the wood which had been cut from the olive trees should be returned to her.

9. Africanus, Questions, Book VIII.

If a woman promises, by way of dowry, to her husband who is her debtor, land for which he owes her, the said land becomes dotal.

(1) Where she promises him, as dowry, either the land or ten aurei which he owes her, he will have the right to decide of which of these the dowry shall consist.

• (2) But if the husband owed Stichus, a tract of land, and his indebtedness was promised to him as dowry, and Stichus should die, the dowry will then consist of the land.

(3) Julianus says that the result of all this would be that if either the Cornelian or the Sempronian estate for which he was indebted was promised to him as dowry, whichever of these he selected would constitute the dowry; and it is evident that if he wished to alienate either of them he could not alienate the other. If, however, he afterwards should purchase the one that he alienated, he would still have the power to alienate the one which he had retained, if he desired to do so.

10. Paulus, Questions, Book V.

The application of this law is therefore indefinite, because the obligation was dotal. Hence where the husband was able to alienate one tract of land could he also alienate the other, because he had the right to repurchase the first, even if this had not yet been done? Or should this not be allowed, for fear either one of them might compose the dowry? It is certain that one of them would be held to have been lawfully alienated, if the other was afterwards redeemed.

11. Africanus, Questions, Book VIII.

Where a tract of land given as dowry is appraised in order that the woman may have the right of choice, it is held that the land cannot be alienated. The contrary rule, however, prevails, if this depends upon the will of the husband.

12. Papinianus, On Adultery, Book I.

Even though the marriage should be dissolved, the land is still understood to be dotal.

(1) The consent of a father-in-law to the sale of land belonging to a dowry is of no force or effect.

13. Ulpianus, On Adultery, Book V.

We should understand dotal land to include both that situated in town and country, for the Lex Julia had reference to every kind of buildings.

(1) The term "land" also applies to a portion of the tract, hence, whether the entire tract has been given as dowry, or only a part of the same, it cannot be alienated. This is the law at present.

(2) We understand the term "dotal land" to refer to that of which the ownership is acquired by the husband, so that then only is he forbidden to alienate it.

(3) The same relief is granted by the law to the heir of the wife, as is granted to the wife herself.

(4) Where a wife is appointed heir to her husband, and the land belonging to the dowry is bequeathed, if, after the deduction of the legacy, the woman should have an amount of interest in the estate equal in value to the dowry, the legacy will be valid.

The question arises whether it will be valid if the amount should be less. Scævola says that a portion can be recovered, if not all of it, if a certain amount is lacking to make up the dowry; and that only that much will remain in the hands of the woman which is required to supply the deficiency.

14. Paulus, On Adultery, Book III.

Where a woman, who was about to marry Titius, transferred to Mævius, with the consent of her husband, the land which she had given as dowry; the dowry will be in the same condition as if she had transferred it to Titius herself.

(1) If anyone should give a tract of land as dowry for a woman, it becomes dotal; for it is considered to have come into the hands of the husband on account of his wife.

(2) Where a husband owes his wife land belonging to another, and she promises it to him by way of dowry, it will be in suspense, and will become dotal when it comes into his hands.

(3) If a woman rejects land which has been devised to her by way of dowry, or even if she fails to accept an estate or a legacy, where her husband was substituted, the land will become dotal.

15. Papinianus, Opinions, Book I.

It has been decided that dotal land, the possession of which was retained by the husband after letters which he sent to his wife, in which he stated that the land would not become dotal, can be retained by the husband after the wife had died during marriage, for the reason that she would not be entitled to an action on contract.

16. Tryphoninus, Disputations, Book XI.

Where a woman gave her husband, by way of dowry, a tract of land of which Titius had possession in good faith, and had a right to claim for himself on the ground of prescription, and her husband neglected to bring suit for said land when he could have done so, he will be responsible. For although the Lex Julia, which forbids dotal land to be alienated, also has reference to an acquisition of this description, it does not, however, interrupt possession which has existed for a long time, if this had already begun before the land was rendered dotal. It is evident that if a very few days are lacking to establish the prescriptive right, the husband will not be at all to blame.

17. Marcianus, Digest, Book VII.

A husband sold and delivered land forming part of a dowry. If his wife died during marriage, and the dowry was a source of profit to the husband, the purchaser cannot be deprived of the land.

18. Javolenus, On the Last Works of Labeo, Book VI.

A husband opened marble quarries on dotal land. A divorce having taken place, the question arose to whom the marble which had been taken out but which had not yet been removed, belonged; and whether the wife or the husband should bear the expense incurred in working the quarries. Labeo said the marble belonged to the husband, but he denied that anything should be paid to him by the wife, because the expense was not necessary, and the land had been rendered less valuable.

I think that not only necessary expenses but also those that are useful should be paid by the wife, and I do not believe that the land was decreased in value, if the quarries were of such a kind that the quantity of stone in them would, in time, be increased.

(1) If the wife should be in default, where an agreement was made that she should receive the land after paying the appraised value of part of the same to her husband; Labeo says that any profits collected in the meantime belong to the latter. I think that the better opinion is that the husband should be entitled to a proportionate share of the profits, and that the remainder should be refunded to the woman; which is the law at present.¹

¹ The great antiquity of the custom of endowing a bride is disclosed by the laws of the ancient Babylonians relating to this subject, the provisions of which, it should be noted, almost exactly correspond with those of later times. "If a man set his face to put away a wife who has presented him with children, he shall return to that woman her dowry, and shall give to her the income of field, garden, and goods, and she shall bring up her children."

"If a man would put away his wife who has not borne him children, he shall give her money to the amount of her marriage settlement, and he shall make good to her the dowry which she brought from her father's house, and then he may put her away." (The Code of Hammurabi 137, 138.)

"The marriage portion could not be reclaimed by the wife's family if she had children. If she had none, it went back to her family." (Johns, Babylonian and Assyrian Laws, page 130.)

The Hebrews required the dowry to come from the husband in compliance with the usual rule of purchase among semi-barbarians: "Ask me never so much dowry and gift, and I will give according as ye shall say unto me." (Genesis XXXIV," 12.)

A marriage without a consideration of some kind was void. The wife had no right to the dowry settled upon her until the matrimonial union was terminated by death or divorce.

In Greece, a marriage portion, or dowry, was always given by the relatives of the bride when they were able to do so; compliance with this practice was not, however, indispensable to marriage. Solon, in order to prevent marriages from being contracted from purely mercenary motives, restricted the amount of property which the wife could bring into her husband's family to not more than three garments and a few household utensils of trifling importance. The value of the dowry required was subsequently regulated by the rank of the bride's relatives, and ranged from one hundred and fifty to five hundred drachmæ, that is from thirty to one hundred dollars.

As at Rome and among modern nations of Latin origin, the object of the dowry was the maintenance of the wife and her children, and, hence, if she was divorced, or left her husband for some legal cause, he was obliged to return it. Anyone who Promised to endow a woman was not compelled to abide by his promise, if she died Without issue. It was customary at Athens, in case of the confiscation of a husband's property, for the wife's dowry to be set off to her. In order to encourage

marriage based on affection and obviate any manifestation of insolent superiority of the part of the wife arising from the consciousness of her greater wealth, Lycurgus abolished the bestowal of dowries in Sparta, a regulation which, as might be presumed from the avaricious propensities of a large portion of mankind, did not long survive him.

Where the wife brought a dowry, the husband was expected to settle real property upon her as an equivalent, in order to provide a home for her in case he died, or a divorce was obtained. (Potter, Antiquities of Greece, 1, 202, IV, 11.)

The law of the Visigoths declared the gift of a dowry to be an indispensable requisite to maintain the future honor and dignity, of the conjugal relation. "Nam ubi dos nec data est, nec confirmata, quod testimonium esse potest in coniugii dignitate futura?"

To prevent the bridegroom from impoverishing himself by excessive liberality, it was provided that he could not legally bestow as dowry more than one-tenth of his entire property. (Forum Judicum, III, I, 1, 6.)

Under the Salic Law, if a widower wished to marry again, he was prohibited from giving the dowry of the first wife to the second; and he could not sell, or give it away until his children became of age. If he had no issue by his first wife, her next of kin could claim two-thirds of her dowry, provided they left out of it two beds, two covered footstools, and two chairs; if they failed to do this they would be entitled to only a third of it. "Sì uero de anteriorem uxorem filios non habuerit, parentes qui proximiòres sunt mulieris defuncti duas partes dotis recoligant et duos lectaria demittant, dua scamna coperta, duo cathedras. Quod si istud non fecerint, tertia sola de dote recoligant; tamen si per adfatimus antes non cromauerint." (Lex Salica, LXXII, 1, 2.)

As appears from the text, there were two kinds of dowry at Civil Law, the profectitious, given by the father to his daughter, and the adventitious, which owed its origin to anyone else, including the bride herself. Where it was expressly stipulated that in case of dissolution of the marriage the dowry should be returned to the donor, it was called dos receptitia, a provision instituted for the benefit of a third party, usually not a relative. The husband was invested with the entire administration of the dowry as well as the income derived from it, but he could neither sell nor encumber it, even with his wife's permission, if it consisted of real estate; a rule which, however, was not applicable to personal property, which he could dispose of at his pleasure. Marriage was essential to render the constitution of a dowry valid: "Neque enim dos sine matrimonio esse potest." The donatio proptor nuptias, or ante-nuptial gift, differed from the dowry in that it was given by the husband for the use of the wife, in case he died before her, and in this respect it resembled the English dower. If she died first, it reverted to him, but if she survived him, the right to it vested absolutely in her.

In the preservation and management of the dowry, the husband was bound to exercise the strictest diligence to avoid being responsible, unless he could show that he had employed the same care with reference to it that he was in the habit of employing in the conduct of his own affairs, and if this fact was established, he could only be held liable for gross negligence.

It was the custom among the Germans, as we learn from classic writers, for the bridegroom to endow the bride, as is done at present, from which fact the modern custom is undoubtedly derived. The old Anglo-Saxon laws of England provided that if a woman's husband was convicted of murder, and she was acquitted of complicity in the crime, she could retain her marriage gifts and dower. "Si misericordia Dei et rectum suum salvaverit, remaneant legales cum maritagiis suis et dotibus." (Ancient Laws and Institutes of England; Leges Regis Edwardi Confessoris, XIX.)

Marriage by capture, the primal method of securing a wife, was by degrees succeeded by marriage by purchase, and conjugal union thus became a purely business transaction. Among the Anglo-Saxons, the bride was sold by her father or guardian, the price being dependent upon the rank of the parties. While performance of the contract could not be enforced against him who had the disposal of the woman, he could be sued for damages for non-delivery, as in the case of any other chattel. The ceremony of betrothal, when perfected, practically constituted the formal matrimonial union, and while religious rites accompanied marriage they were considered of but little consequence. The compensation, at first paid to the father or guardian, was subsequently, when the contract became a legal fiction, bestowed upon the bride as a dotal gift.

"The marriage having been consummated, and the bridal night having passed, another present is given by the husband to his newly made wife, called the morgengifu, or morning gift. This was not essential to the legality of the marriage, but was a voluntary gift from the bridegroom to the bride. This form being at first a gift of some chattel of little value, such as a trinket or ornament, to show the husband's appreciation of his bride, became a gift of large value, generally of realty, and as a rule, in later times was stipulated for on betrothal. This gift became recognized as a sum to support the widow upon the death of the husband, and if none were given, the law allowed a certain amount for this purpose as morning gift. From this it will easily be seen has sprung the dowry of the English law. (Barrell, An Outline of Anglo-Saxon Law, Page 58.)

The right of dower, as known to us, is the opposite of what was understood by the term dos among the Romans, although both can be traced to the barbarian ceremony of marriage by purchase, which in practice is not, even now, obsolete. This radical difference of signification is thus referred to by Glanvil: "In alia enim acceptione accipiunt Dos secundum Leges Romanas, seeundum quas proprie appelatur Dos id q'd cum muliere datur viro quad vulgariter dicit Maritagium." (Glanvil, Tract, de Leg. et Consuet. Angliæ, VII, I.) The Latin coemptio, the ancient fictitious sale, by means of which autocratic parental authority over the bride was transferred to the bridegroom, was concluded by her payment of an as to her husband, which was symbolical of the delivery not only of her person, but of all her property or peculium, as well, and was absolutely confirmed by uninterrupted cohabitation for the period of a year.

Five different classes of dower are mentioned by Littleton, namely: by Common Law, by custom, ad cotium ecclesiæ, ex assensu patris, de la plus belle. The right had reference to one-third of such lands and tenements as belonged to the husband during coverture, which, at Common Law, was known as dos legitima. Under the customs of certain towns and countries of England, the wife was entitled to half the estate of her deceased husband, and under those of others, to all of it.

When a woman was endowed at the church door, after her husband died she could enter upon the premises thus publicly designated without any other assignment of the same.

Dower ex assensu patris was constituted by a son who was the heir of his father and embraced land held by the latter, and was thus encumbered with his consent.

Endowment de la plus belle, or of the best part of a tract of land, referred to the privilege a widow enjoyed of selecting a third of certain real property in which she had an interest as guardian in socage of her infant son, who was at the same time the ward in chivalry of the lord of the deceased.

A wife was not entitled to dower in lands of which her husband was joint owner with another. (Littleton, Tenures, I, V, 36-45.)

Among Moslems, dower is considered by many legal authorities as a consideration paid for the usufruct of the wife, in other words the purchase-money of property sold. It is held to be so essential that, if not mentioned in the ante-nuptial contract, liability for its payment will be held to exist, as a matter of course. It can be composed of anything which possesses or may possess an actual value, except wine, blood, carrion or a hog, and its value cannot be less than ten dirhems, or about ninety cents. No limit is placed to its amount above that sum, the pecuniary circumstances of the bridegroom, as well as his generosity, being presumed to establish its value and regulate its payment. While many wives do not exact it during the lifetime of their husbands, it is regarded as a legal debt and must be settled in case of divorce, or after the death of the husband, it being a first lien on his estate after the funeral expenses are paid. (Tagore, Law Lectures, page 34; The Hedaya, IV, X.)

A debt or a credit is assignable as dower. "It is lawful for a man marrying a woman to fix for her dowry anything which may be due to him from her, or which may be due from somebody else.

"If a man fix for dower a profit, that also will be lawful, for example, residence in a house, or the right of riding on an animal, the right of cultivation, etc."

"A free man may assign to his wife his own services in lieu of dower." (Syed Ameer Ali, Mohammedan Law, Vol. II, XI, 12.)

A release of her right of dower before, or at the time of her marriage is void; but after the ceremony she can, if she so desires, discharge her husband from liability for it, or return anything which she may have received. It is not imperative that the dower be constituted before marriage, as this may be done subsequently.

The French Code provides that all property included in the marriage contract shall be dotal, unless the contrary is expressly stated therein. The husband may be compelled to furnish a bond to insure its safe-keeping and proper administration. Real estate given as dowry cannot be alienated or hypothecated, unless this was explicitly authorized by the ante-nuptial agreement, and only under circumstances which render this step extremely advisable, or necessary. The husband is liable as an usufructuary, and if the marriage should be dissolved he must return the property composing the dowry at once, if it consists of land, and after the lapse of a year, if it consists of money or other personal effects, unless the latter should be appraised and the ownership vested in him.

"Tout ce que la femme se constitue ou qui lui est donné en contrat de mariage est dotal, s'il n'y a stipulation contraire."

"Le mari n'est pas tenu de fournir caution pour la reception de la dot, s'il n'y a pas été assujetti par le contrat de mariage."

"Le mari est tenu, a I'egard des biens dotaux, de toutes les obligations de l'usufruitier." (Code Civil de France, Arts. 1540-1566.)

In Spain, relatives of the bride, or strangers, may endow her either before or after marriage; the husband, however, can only do so before the performance of the ceremony. The father or mother of the wife is obliged to provide a dowry for every one of their legitimate daughters; which must equal in amount half of the share of the estate to which each would legally be entitled. The husband is compelled to register in his own name the real property composing the dowry, and execute a mortgage for the same in favor of his wife, for a sum not exceeding its appraised value. If the dowry has not been appraised, and the wife is of age, she can, with the consent of her husband, dispose of or hypothecate the property of which it is composed. Where the marriage is dissolved or declared void, immediate restitution of the property appraised as dowry can be demanded of the husband or his heirs.

"Pueden constituir dote a favor de la muyer, antes ó después de contraer el matrimonio, los padres y parientes de los esposos y las personas extrañas a la familia."

"El padre ó la madre ó el que de ellos viviese están obligados á dotar a sus hijas legitimas."

"El marido está obligado á inscribir á su nombre é nipotecar en favor de su muier los bienes inmuebles y derechos reales que reciba como dote estimada." (Código Civil de España, Arts. 1336-1352.)

In Italy, any future acquisitions that may accrue to the bride are not held to be embraced in the dowry, unless especially provided for when it was constituted, and this cannot be done, nor can any additions be made to it after marriage. If the movable property of which the dowry is wholly or partly composed is diminished or worn out by use, without the fault of the husband, he will only be required to return what remains in its present condition.

"La costituzione di dote espressa, in termini generici di tutti i boni della donna non comprende i, boni futuri."

"Se i mobili la cui proprietà resta alla moglie, si sono consumati coll' uso e sensa colpa del marito, egli non è tenuto a restituire che i remanenti, e nello stato in cui si trovano." (Codice Civile Regno d'ltalia, Arts. 1388-1415.)

The Code of Portugal directs that money forming part of a dowry shall, within three months after marriage, be invested in land or good securities, and be hypothecated to the wife. If this is omitted, the money is not considered as included in the dowry, and it becomes the property of herself and her husband as joint owners. When the dowry is given by the parents or grandparents of the bride, they will be responsible for its value in case of eviction. This does not apply to strangers, except in case of fraud, or where liability has been established by special agreement.

"Se no dote, quer esta seja constituido pela mulher, quer pelo inarido, quer por outrem, for incluido dinheiro, sera esta convertido, dentro de tres nueses, contados desde o casamento, em bens inmoveis, inscricoes de assentamento, on accoes de companhias, ou dado a juros, par escritura publica, com hypotheca."

"Se o dote tiver sido constituido pelos paes o pelos avos da dotada, serao os dotadores responsaveis pela importancia d'elle no caso de eviccão." (Código Civil Portuguêz, Arts. 1140, 1142.)

Neither dowry nor the right of dower is recognized by Japanese jurisprudence. The husband, or the wife if she is the head of the family, must bear all the expenses arising from marriage, no provision for which is made either previously, or subsequently by a gift or settlement in favor of either. (Civil Code of Japan, Art. 798.)

The English rule regulating the right of dower, with some unimportant modifications, has been generally adopted by statute in the United States, with the exception of Louisiana, where the ancient Civil Law doctrine of dowry prevails. A dowry there may consist of real or personal property, or of both, and the person who gives it is obliged to warrant the title to the same. The statutory provisions, for the most part, exactly coincide with those of France. The right of dower is not known to the law of Louisiana, but ample provision is made for the widow by means of the community of property established ipso facto by marriage. (Civil Code of Louisiana, Arts. 2317-2334: 2309-2378.) — ED.

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