XVI. Some marri∣ages though forbid to be done, yet being done are valid.
Though the Laws of men do forbid some certain persons to be joyned in marriage, yet it follows not, that being married, their marriage is void. For it is one thing to forbid the doing of a thing, and another to make that void that is done: For the Prohibi∣tion may extend it•• force no farther than to some penalty, either exprest or arbitrary; which sort of Laws Ʋlpian calls Imperfect Laws: Quae fieri quid vetant, sed factum non rescindunt; Which prohibit the doing, but rescind not the fact done. Such was the Cincian Law among the Romans,* 1.1 that restrained men from giving more than unto such a propor∣tion,* 1.2 but did not make void that which was given beyond it. The Valerian Law (saith Livy) when it forbad the whipping with Rods, or the killing with the Axe, him that had pro∣voked or challenged another, imposed no penalty upon the breaker of the Law, but adjudged it to be improbe factum, dishonestly done (such was the modesty of those times, when Infamy only was thought a sufficient guard to the Laws) whereas now, there is scarce any that will so mildly threaten his servant.* 1.3 By the Fusian Law, none except some few particular persons was to receive by way of Legacy more than ten thousand Asses,* 1.4 (which reduced to our Coyn, amount to about one and thirty pounds ten shillings, reckoning every As to an Half Penny Farthing):* 1.5 and he that received more, was to forfeit the Quadruple summ. Amongst those Laws that were called Imperfect, Macrobius reckons those which had no penalty annexed to the breach of them. Such was that rescript of D. Marcus, That Heir who forbad him to perform Funeral Rites, who was thereunto appointed by the Testator, did not rightly; howbeit he ordered no punishment to be inflicted upon him that did it. We do acknowledge,