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Justinian I · The Digest of Justinian §23.2.57.pr

Marriages of Officers' Sons and Legitimating Children

Passage 3363 of 9271 · Latin

Summary

On the prohibition of provincial officers consenting to their sons' marriages, and a imperial rescript exceptionally validating the status of children born from an incestuous marriage with an uncle.

[MARCIANUS libro secundo institutionum. ] §23.2.57.prQui in prouincia officium aliquid gerit, prohibetur etiam consentire filio suo uxorem ducenti.
[MARCIANUS, in the second book of his Institutes.] He who holds any office in a province is also forbidden to consent to his son marrying.
In libro secundo de adulteriis PAPINIANI MARCIANUS notat: Diuus Marcus et Lucius imperatores Flauiae Tertullae per mensorem libertum ita rescripserunt: 'Mouemur et temporis diuturnitate, quo ignara iuris in matrimonio auunculi tui fuisti, et quod ab auia tua collocata es, et numero liberorum uestrorum: idcircoque cum haec omnia in unum concurrunt, confirmamus statum liberorum uestrorum in eo matrimonio quaesitorum, quod ante annos quadraginta contractum est, perinde atque si legitime concepti fuissent'.
In his note on the second book of Papinian's On Adulteries, Marcianus remarks: The deified emperors Marcus and Lucius replied by rescript to Flavia Tertulla through their freedman Mensor as follows: 'We are moved both by the length of time during which you, in ignorance of the law, were in marriage with your maternal uncle, and by the fact that you were given in marriage by your grandmother, and by the number of your children; and therefore, since all these circumstances concur in one, we confirm the status of your children born of that marriage which was contracted forty years ago, just as if they had been lawfully conceived.'

Notes

  1. §23.2.57.prfilio suo uxorem ducenti — The present participle ducenti (marrying) agrees with filio suo, which is the dative object of consentire (to consent). The phrase means 'to consent to one's son who is marrying'.
  2. §23.2.57.prper mensorem libertum — Although mensorem could be interpreted as the common noun 'mensor' (surveyor), it is generally understood here as a proper name Mensor, thus meaning 'through the freedman Mensor'.
  3. §23.2.57.prignara iuris in matrimonio auunculi tui fuisti — The adjective ignara is nominative feminine singular, agreeing with the addressee Flavia Tertulla, and governs the genitive iuris (ignorant of the law). Marriage with a maternal uncle (auunculus) was legally prohibited as incestuous under Roman law.
  4. §23.2.57.prperinde atque si legitime concepti fuissent — The phrase perinde atque si (just as if) introduces a contrary-to-fact conditional clause, using the subjunctive pluperfect fuissent to assume a situation contrary to past reality (the fact that they were conceived in an unlawful union).

Cite this passage

Justinian I, The Digest of Justinian §23.2.57.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:23.2.57.pr

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