be created. One, probably the older, had a religious character. It took
place in the presence of the chief pontiff, and its main feature was a
sacrifice to Jupiter, with the eating by the bride and bridegroom of a
cake of a particular kind of corn (_far_), whence it was called
_confarreatio_. It was originally confined to members of the patrician
houses. The other was a purely civil act, and consisted in the sale by
the bride of herself, with the approval of her father or her guardian
(as the case might be), to the bridegroom, apparently accompanied
(though there is a controversy on this point) by a contemporaneous sale
by the bridegroom of himself to the bride. The transaction was carried
out with certain formal words and in the presence of five witnesses
(being citizens)[163], besides the man who held the scales with which
the money constituting the price was supposed to be weighed. The price
was of course nominal, though it had in very early times been real.
-----
Footnote 163:
There has been much dispute as to this ceremony: I give what seems the
most probable view. It may descend from a more ancient sale of the
wife by her relatives to the husband, similar to that which we find in
some primitive peoples.
-----
These two forms have been frequently spoken of as if they were
indispensable forms of marriage, so that marriage had always the Hand
power as its consequence. But this, though it may probably have been the
case in very early days, was not so in those historical times to which I
must confine myself. And the proof of this may be found in the fact that
if a woman was married without either of the above forms, she did not
pass into the Hand of her husband unless or until she had lived with him
for a year, and not even then if she had absented herself from his house
for three continuous nights during that year[164]. And where the Hand
power had not been created, the property rights of the wife, whatever
they were[165], remained unaffected by the marriage. The period of three
nights is fixed in the Twelve Tables, possibly as a precise definition
of a custom previously more uncertain.
-----
Footnote 164:
This was in pursuance of the general rule that rights over a movable
were acquired by a year’s continuous holding: ‘usus auctoritas fundi
biennium, caeterarum rerum annuus esto.’
Footnote 165:
If she was in the power (_potestas_) of her father, she had no
property of her own. If she was _sui iuris_, she was under
guardianship.
-----
This was the old Roman system, and a very singular system it was,
because it placed side by side the extreme of marital control as the
normal state of things and the complete absence of that control as a
possible state of things. Doubtless the marriages with Hand were in
early days practically universal, resting upon a sentiment and a social
usage so strong that women themselves did not desire the free marriage,
which would put them in an exceptional position, outside the legal
family of the husband. Nor can we doubt that the wide power which the
law gave to the husband was in point of fact restrained within narrow
limits, not only by affection, but also by the vigilant public opinion
of a comparatively small community.
IV. CHANGE FROM THE EARLIER TO THE LATER
SYSTEM AT ROME.
Before the close of the republican period the rite of _confarreatio_
practically died out, or was referred to as an old-world curiosity, much
as a modern English lawyer might refer to the power of excommunication
possessed by ecclesiastical authorities. The patrician houses had become
comparatively few, and the daughters of those that remained evidently
did not wish to come under the Hand power[166]. The form of _coemptio_,
which all citizens might use, lasted longer, and seems to have been not
infrequently applied in Cicero’s time. Two centuries later it also was
vanishing, and Gaius tells us that the rule under which uninterrupted
residence created the husband’s power of Hand, and might be stopped by
the wife’s three nights’ absence, had completely disappeared (Gai
_Inst._ i. 111). So we may say broadly that from the time of Julius
Caesar onwards the marriage without Hand had become the rule, while from
the time of Hadrian onwards the legal acts that had usually accompanied
marriage, which placed the wife under the husband’s control, were almost
obsolete.
-----
Footnote 166:
Nevertheless it was retained in a few families for the purpose of
providing persons who could hold four great priestly offices, since by
ancient usage none save those born from a marriage with confarreation
were able to serve these priesthoods. But its operation seems to have
been restricted by a decree of the senate so as to apply only so far
as religious rites were concerned (_quoad sacra_) (Gai _Inst._ i.
136).
-----
This was a remarkable change. The Roman wife in the time of the Punic
Wars had, with rare exceptions, been absolutely subject to her husband.
She passed out of her original family, losing her rights of inheritance
in it. Her husband acquired all her property. He could control her
actions. He sat as judge over her, if she was accused of any offence,
although custom required that a sort of council of his and her relatives
should be summoned to advise him and to see fair play. He could put her
to death if found guilty. He could (apparently) sell her into a
condition practically equivalent to slavery, and could surrender her to
a plaintiff who sued him in respect of any civil wrong she had
committed, thereby ridding himself of liability. One can hardly imagine
a more absolute subjection to one person of another person who was
nevertheless not only free but respected and influential, as we know
that the wife in old Rome was. It would be difficult to understand how
such a system worked did we not know that manners and public opinion
restrain the exercise of legal rights.
Such was the old practice. Under the new one, universal in the time of
Domitian and Trajan, which is also the time of Tacitus, Juvenal and
Martial, the Roman wife was absolutely independent of her husband, just
as if she had remained unmarried. He had little or no legal power of
constraint over her actions. Her property, that which came to her by
gift or bequest as well as that which she earned, remained her own to
all intents and for all purposes. She did not enter her husband’s
family, and acquired only a very limited right of intestate succession
to his property.
This striking contrast may be explained by the fact that the
disabilities which attached to the wife under the old system were not in
legal strictness the consequence of marriage itself, but of legal acts
which an almost universal sentiment and custom had attached to marriage,
though in themselves acts distinct from it. A perfectly valid marriage
could exist without these legal acts, and so far back as our authorities
carry us, we find that a few, though probably originally only a very
few, marriages did take place without them. Accordingly when sentiment
changed, and custom no longer prescribed the use of confarreation or
coemption, the power of Hand vanished of itself and vanished utterly.
Had it been an essential part of the marriage ceremony, it would
doubtless have been by degrees weakened in force and accommodated to the
ideas of a new society. But no legislation was needed to emancipate the
wife. The mere omission to apply one or other of the old concomitants
gave the marriage relation all the freedom the parties could desire and
perhaps more than was expedient for them.
We may now dismiss these ancient forms and address ourselves to the
position of the wife under the normal marriage of later times—the
so-called ‘free marriage,’ since this is the form in which the Roman
institution descended to and has affected modern law[167].
-----
Footnote 167:
I pass by the distinction between _iustae nuptiae_, which could be
contracted only between Roman citizens, and the so-called ‘natural’
marriage, or _matrimonium iuris gentium_, which was created by the
marriage of a full citizen to a half citizen or an alien
(_peregrinus_), because the latter is of no consequence for our
purpose, and practically disappeared when all Roman subjects became
citizens. It was a perfectly valid marriage, and the children were
legitimate. As to their status, see Gai _Inst._ i. 78, 79.
-----
V. LATER MARRIAGE LAW: PERSONAL RELATION
OF THE CONSORTS.
The following points deserve to be noted as characterizing the Roman
view.
The act whereby marriage was contracted was a purely private act. No
intervention of any State official, no registration or other public
record of any sort was required. The two parties, and the two parties
only, were deemed to be concerned[168].
-----
Footnote 168:
Where either party was subject to the paternal power of his or her
father (or grandfather), the consent of the father (or grandfather)
(or both) was required, though in a few specified cases it might be
either dispensed with or compelled. This was a consequence of the
Roman family system. It was irrespective of the age of bride or
bridegroom.
-----
The act was a purely civil act, to which no religious or ecclesiastical
rite was essential either in heathen or in Christian times. There were
indeed what may be called decorative ceremonies, some of which we find
mentioned in poems like the famous Epithalamium of Catullus, but they
had no more to do with the legal nature and effect of the matter than
has the throwing of old shoes or rice at a modern English wedding.
The act required no prescribed form. It consisted solely in the
reciprocally expressed consent of the parties, which might be given in
any words, or be subsequently presumed from facts. ‘Marriage is
contracted by consent only’ (_nuptiae solo consensu contrahuntur_) is
the invariable Roman maxim. Even the conducting of the bride to the
bridegroom’s house, which has sometimes been represented as
necessary[169], seems to have been regarded rather as evidence needed in
certain cases than as essential to the validity of the act[170]. A
generally prevalent usage made a formal betrothal (_sponsalia_) precede
the actual wedding. But the betrothal promise created no legal right. No
action lay upon it, such as that which English and Anglo-American law
unfortunately allows to be brought for breach of promise of marriage. In
early times formal and binding stipulations seem to have been often made
on each side between the bridegroom and the father (or other male
relative) of the bride for the giving and receiving of the bride; and if
the promise were broken without sufficient cause, an action lay against
the party in fault for the worth of the marriage[171]. This, however,
disappeared. Under the influence of a more refined sentiment, not only
could no promise of marriage be enforced, but if the parties made a
contract whereby each bound him or herself to the other in a penal sum
to become payable in case of breach, such a provision was held to be
disgraceful (_pactum turpe_) as well as invalid. This was the law of
later republican and imperial times. Betrothal had, however, some legal
effects. It entitled either of the betrothed parties to bring an action
for an injury (of an insulting nature) offered to the other. It rendered
any one infamous who being betrothed to one person contracted betrothal
to another. It entitled either party, if the espousal was broken off
before marriage, to reclaim whatever gifts he or she might have bestowed
upon the other.
-----
Footnote 169:
The Emperor Majorian (A.D. 455-461) is said to have issued a
constitution for the Western Empire, making the creation of a _dos_
essential to the validity of a marriage: but this provision, which can
hardly have been intended to be general, seems to have never taken
effect. The Western Empire was then in the throes of dissolution.
Footnote 170:
See Paul., _Sent. Recept._ xix. 8; _Dig._ xxii. 2. 5. The suggestion
which may be found in some modern writers that Marriage fell within
the class of the contracts created by the delivery of an object (the
so-called Real Contracts), has no Roman authority in its favour, and
is indeed based on a misconception of the nature of those four
contracts, in all of which the obligation created is for the restoring
of the object delivered. Marriage is assuredly not a bailment.
Footnote 171:
This was at any rate a usage among the Latins; but how far in Rome
seems doubtful.
-----
As regards personal status, the wife acquired that of her husband
(unless either had been formerly a slave), and his domicil became hers.
In the old days of Hand power she had taken the name of his _gens_, but
now she retained her own, besides her personal ‘first name’
(_praenomen_) (_e.g._ Tertia)[172]. Each spouse being interested in the
character and reputation of the other, he could sue for damages if any
insult was offered to her, she for insult to him. He is bound to support
her in a manner suitable to their rank, whatever her private means may
be. Though each can bring an action against the other, the action must
not be one which affects personal credit and honour (_actio infamans_),
and hence, though each has his and her own property, neither can proceed
against the other by a civil action of theft, even if the property
seized was seized in contemplation of a divorce[173]. It need hardly be
added that if the wife’s father, or grandfather, were living, she would
remain, unless she had been emancipated, subject to the paternal power,
being for all legal purposes a member of her original family and not of
her husband’s. But the person in whose power she is cannot (at least in
imperial days) take her away from her husband. Antoninus Pius forbade a
happy marriage to be disturbed by a father; and in the third century
(perhaps earlier) the husband could proceed by way of interdict to
compel a father to restore his wife to him[174].
-----
Footnote 172:
Under the Empire we usually find women using two names, from their
father’s _gens_ and family (e.g. _Caecilia Metella_). Sometimes, it
would seem, the name of the father’s _gens_ was followed by one taken
from the mother (e.g. _Iunia Lepida_, _Annaea Faustina_). The subject
is fully discussed by Mommsen, in his _Römisches Staatsrecht_.
Footnote 173:
A special action (_rerum amotarum_) was given in this case. Some
jurists held that the joint enjoyment of household goods made the
conception of Theft inapplicable to a wife’s dealings, however
unauthorized, with her husband’s property. _Dig._ xxv. 2. 1.
Footnote 174:
_Dig._ xliii. 30. 2.
-----
VI. LATER LAW. PECUNIARY RELATIONS OF THE CONSORTS.
This curiously detached position of the two consorts expressed itself in
their pecuniary relations. Each had complete disposal of his or her
property by will as well as during life, though the wife needed, down to
a comparatively late time, the authority of her guardian[175]. Neither
had originally any right of succession to the other in case of
intestacy, nor had the wife any right of intestate succession to her
children nor they to her, except that which the Praetor gave them among
the blood relatives (_cognati_) generally, after the agnates (persons
related through males). A state of things so inconsistent with natural
feeling could not however always continue, so the Praetor created a rule
of practice whereby each consort had a reciprocal right of succession to
the other. But even in doing so, he placed this succession after that of
other blood relations, as far as the children of second cousins. This
postponement of a consort to blood relatives was carried even further by
Justinian’s legislation, for that emperor extended the category of
relatives who could succeed in case of intestacy, and made no provision
for the wife (beyond that which the Praetor had made), except to some
small degree in case of a necessitous widow. The relationship of mother
and child received a somewhat fuller recognition, for laws (_Senatus
Consultum Tertullianum_, _Sc. Orphitianum_) of the time of Hadrian and
Marcus Aurelius gave the mother and the children reciprocal rights of
inheritance[176], which, finding a place in the general scheme of
succession based on consanguinity which Justinian established, have
passed into modern law.
-----
Footnote 175:
The guardianship of women of full age seems to have died out after
women received power to select a guardian for themselves, a change
which of course made his action purely formal.
Footnote 176:
The mother’s succession was originally granted only where she had
borne three children (if a freed-woman, four).
-----
Distinct as were the personalities of the two consorts in respect of
property, the practical needs of a joint life recommended some plan
under which a provision might be made for the expenses of a joint
household. This sprang up as soon as marriages without the concomitant
creation of the Hand power had grown common. It became usual for the
wife to bring with her land or goods, either her own, if she were
independent, or bestowed by her father or other relative. This property,
which was destined for the support of the married pair and their
children, was called the _Dos_, a term which, since it denotes the
wife’s contribution to the matrimonial fund, must not be translated by
our English word Dower, for that term describes the right of a wife who
survives her husband to have a share in his landed estate. Many rules
sprang up regarding the _Dos_, rules probably due in the first instance
to custom, for as the instruments of marriage contracts were usually
drawn on pretty uniform lines, these lines ultimately became settled
law[177]. The general principle came to be that property given from the
wife’s side, whether by her father, or by herself, or by some of her
relatives, became subject to the husband’s right of user while the
marriage lasted, as enabling him to fulfil his obligation to support
wife and children, but at the expiry of the marriage by the death
(natural or civil) of either party, or by divorce, reverted to the wife
or her heirs[178]. If, however, the property had been bn 414.png given
by the wife’s father, he might, if still living, reclaim it[179]. The
_Dos_ is said by the Romans to be given for the purpose of supporting
the burden of married housekeeping, and therefore the administration and
usufruct of it pertain to the husband, while the ultimate ownership
remains in the wife, or in the father who constituted it, as the case
may be. In the later imperial period a sort of second form of
matrimonial property was introduced, called the gift for the sake of
marriage (_donatio propter nuptias_). It was made by the husband, and
remained his property both during and after the marriage. So far, as it
was only theoretically separated from other parts of the husband’s
estate, it might seem to have no importance. But if he became insolvent,
it did not, like the rest of his property, pass to his creditors, but
went over to the wife, just as the _Dos_, although administered by the
husband, remained unaffected by his insolvency. And just as the husband
was entitled, where a divorce was caused by the wife’s fault, to retain
a part of the _Dos_, so if a divorce was caused by the husband’s fault,
the _donatio propter nuptias_, or a part of it, might be claimed by the
injured wife. The similarity of some of these arrangements to the
practice of English marriage settlements will occur to every one’s mind,
though in England settlements are always created and governed by the
provisions of the deeds which create them, whereas in Rome, although
special provisions were frequently resorted to, there arose a general
legal doctrine whose provisions were applicable to gifts made upon or in
contemplation of marriage.
-----
Footnote 177:
The ‘custom of conveyancers’ has worked itself into English law in a
somewhat similar way.
Footnote 178:
This was the rule as settled by Justinian. Before his time, the
husband took the _Dos_ at the wife’s death unless it had been given by
her father.
Footnote 179:
There are many less important rules regarding the extent of the
husband’s interest and the form in which the property is to be
restored at the end of the marriage, which it is not necessary to set
forth, as they do not affect the general principle. Indeed generally
through these pages I am forced, for the sake of clearness and
brevity, to omit a number of minor provisions.
-----
One further point needs to be mentioned. It was a very old customary
(or, as we should say, common law) rule of Roman law that neither of the
wedded pair could during the marriage bestow gifts upon the other, the
reason assigned being the risk that one or other might by the exercise
of the influence arising from their relation be deprived of his or her
property to his or her permanent damage (_ne mutuato amore invicem
spoliarentur_). This principle, which protects the wife from being
either wheedled or bullied out of her separate property, and may be
compared with the English restraint on alienation or anticipation
applied to a wife’s settled property, was also held to be occasionally
needed to protect the husband’s interests, and those of the children,
from suffering at the hands of a grasping wife. It issues from the view
which the Roman jurists enounce that affection must not be abused so as
to obtain pecuniary gain; and one jurist adds that if either party were
permitted to make gifts the omission to make them might lead to the
dissolution of the marriage, and so the continuance of marriages would
be purchasable[180]. Such gifts were accordingly held null and void, the
only exception being that where property actually given had been left in
the donee’s hands until the donor’s death, the heir of the donor could
not reclaim it from the surviving donee. Needless to say that the rule
only covered serious transfers of property, and did not apply to gifts
of dress or ornaments or such other tokens of affection as may from time
to time pass between happy consorts.
-----
Footnote 180:
‘Sextus Caecilius et illam causam adiciebat, quia saepe futurum esset
ut discuterentur matrimonia si non donaret is qui posset atque ea
ratione eventurum ut venalicia essent matrimonia.’ This view was
sanctioned by the Emperor Caracalla in his speech to the senate, which
introduced the exception next mentioned in the text; _Dig._ xxiv. 1.
2.
-----
VII. GENERAL CHARACTER OF THE ROMAN CONCEPTION OF MARRIAGE.
Reviewing the rules which regulated marriage without the Hand Power, the
sole marriage of the classical times of Roman law, we are struck by
three things.
The conception of the marriage relation is an altogether high and worthy
one. A great jurist defines it as a partnership in the whole of life, a
sharing of rights both sacred and secular[181]. The wife is the
husband’s equal[182]. She has full control of her daily life and her
property. She is not shut up, like the Greek wife, especially among the
Ionians, in a sort of Oriental seclusion, but moves freely about the
city, not only mistress of her home, but also claiming and receiving
public respect, though so far placed on a different footing from men,
and judged by a standard more rigid than ours, that it was deemed
unbecoming for her to dance and shocking for her to drink wine.
-----
Footnote 181:
‘Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae,
divini et humani iuris communicatio;’ Modestinus in _Dig._ xxiii. 2.
1.
Footnote 182:
This was expressed in the phrase which the bride anciently used when
brought to the husband’s house: ‘Ubi tu Gaius, ego Gaia.’
-----
The marriage relation is deemed to be wholly a matter of private concern
with which neither the State nor (in Christian times) the Church has to
concern itself. This was so far modified under the Emperors, that the
State, from the time of Augustus, began to try to discourage celibacy
and childlessness in the interests of the maintenance of an upper class
Roman population, as opposed to one recruited from freed men and
strangers. But these efforts were not, as we shall see, incompatible
with adherence to the general principle that the formation and
dissolution of the tie required no State intervention, nor even any form
prescribed by State authority.
The marriage relation rests entirely on the free will of the two
parties[183]. If either having promised to enter it refuses to do so, no
liability is incurred. If either desires to quit it, he or she can do
so. Within it, each retains his or her absolute freedom of action,
absolute disposal of his or her property.
Compulsion in any form or guise is utterly opposed to a connexion which
springs from free choice and is sustained by affection only.