The History of the Decline and Fall of the Roman Empire - Edward Gibbon [1423]
[Footnote 132: The principles of the Roman jurisprudence are exposed by Justinian, (Institut. t. i. tit. x.;) and the laws and manners of the different nations of antiquity concerning forbidden degrees, &c., are copiously explained by Dr. Taylor in his Elements of Civil Law, (p. 108, 314 - 339,) a work of amusing, though various reading; but which cannot be praised for philosophical precision.]
[Footnote *: According to the earlier law, (Gaii Instit. p. 27,) a man might marry his niece on the brother's, not on the sister's, side. The emperor Claudius set the example of the former. In the Institutes, this distinction was abolished and both declared illegal. - M.]
[Footnote 133: When her father Agrippa died, (A.D. 44,) Berenice was sixteen years of age, (Joseph. tom. i. Antiquit. Judaic. l. xix. c. 9, p. 952, edit. Havercamp.) She was therefore above fifty years old when Titus (A.D. 79) invitus invitam invisit. This date would not have adorned the tragedy or pastoral of the tender Racine.]
[Footnote 134: The Aegyptia conjux of Virgil (Aeneid, viii. 688) seems to be numbered among the monsters who warred with Mark Antony against Augustus, the senate, and the gods of Italy.]
[Footnote *: The Edict of Constantine first conferred this right; for Augustus had prohibited the taking as a concubine a woman who might be taken as a wife; and if marriage took place afterwards, this marriage made no change in the rights of the children born before it; recourse was then had to adoption, properly called arrogation. - G.]
[Footnote 135: The humble but legal rights of concubines and natural children are stated in the Institutes, (l. i. tit. x.,) the Pandects, (l. i. tit. vii.,) the Code, (l. v. tit. xxv.,) and the Novels, (lxxiv. lxxxix.) The researches of Heineccius and Giannone, (ad Legem Juliam et Papiam-Poppaeam, c. iv. p. 164 - 175. Opere Posthume, p. 108 - 158) illustrate this interesting and domestic subject.]
[Footnote !: See, however, the two fragments of laws in the newly discovered extracts from the Theodosian Code, published by M. A. Peyron, at Turin. By the first law of Constantine, the legitimate offspring could alone inherit; where there were no near legitimate relatives, the inheritance went to the fiscus. The son of a certain Licinianus, who had inherited his father's property under the supposition that he was legitimate, and had been promoted to a place of dignity, was to be degraded, his property confiscated, himself punished with stripes and imprisonment. By the second, all persons, even of the highest rank, senators, perfectissimi, decemvirs, were to be declared infamous, and out of the protection of the Roman law, if born ex ancilla, vel ancillae filia, vel liberta, vel libertae filia, sive Romana facta, seu Latina, vel scaenicae filia, vel ex tabernaria, vel ex tabernariae filia, vel humili vel abjecta, vel lenonis, aut arenarii filia, vel quae mercimoniis publicis praefuit. Whatever a fond father had conferred on such children was revoked, and either restored to the legitimate children, or confiscated to the state; the mothers, who were guily of thus poisoning the minds of the fathers, were to be put to the torture (tormentis subici jubemus.) The unfortunate son of Licinianus, it appears from this second law, having fled, had been taken, and was ordered to be kept in chains to work in the Gynaeceum at Carthage. Cod. Theodor ab. A. Person, 87 - 90. - M.]
Chapter XLIV: Idea Of The Roman Jurisprudence.
Part V.
The relation of guardian and ward, or in Roman words of tutor and pupil, which covers so many titles of the Institutes and Pandects, ^136 is of a very simple and uniform nature. The person and property of an orphan must always be trusted