Scanned text contains errors.

742

'MATRIMONIUM.

influence over the relation of the husband and wife.

[PATRIA POTESTAS.]

2. The liabilities of either of the parties to the punishments affixed to the violation of the mar­riage union. [adulterium ; divortium.]

3. The relation of husband and wife with respect to property, to which head belong the matters of Dos, Donatio inter virum et uxorem, Donatio propter nuptias, &c. Many of these matters, however, are not necessary consequences of marriage, but the consequence of certain acts which are rendered pos-.sible by marriage.

In the later Roman history we often read of marriage contracts which have reference to Dos, and generally to the relation of husband and wife viewed with reference to property. A title of the Digest (23. tit. 4) treats De Pactis Dotalibus, which might be made either before or after mar-

Yiage.

The Roman notion of marriage was this: — it is the union of male and female, a consortship for the whole of life, the inseparable consuetude of life, an intercommunion of law, sacred and not sacred. (Dig. 23. tit. 2. s. 1.) But it is not meant that marriage was to this extent regulated by law, for marriage is a thing which is, to a great extent, beyond the domain of law. The definition or de­scription means that there is no legal separation of the interests of husband and wife in such matters in which the separation would be opposed to the notion of marriage. Thus the wife had the sacra, the domicile, and the rank of the husband. Marriage was established by consent, and continued by dis­sent ; for the dissent of either party, when formally expressed, could dissolve the relation. [DivoR-

TIUM.]

Neither in the old Roman law nor in its later modifications, was a community of property an essential part of the notion of marriage ; unless we assume that originally all marriages were accom­panied with the conventio in manum, for in that case, as already observed, the wife became filiae-familias loco, and passed into the familia of her husband ; or if her husband was in the pOAver of his father, she became to her husband's father in the relation of a granddaughter. All her property passed to her husband by a universal succession (Gains, ii. 96, 98), and she could not thenceforward acquire property for herself. Thus she was en­tirely removed from her former family as to her legal status and became as the sister to her hus­band's children. In other words, when a woman came in manum, there was a blending of the ma­trimonial and the filial relation. It was a good marriage without the relation expressed by in manu, which was a relation of' parent and child superadded to that of husband and wife. The manus was terminated by death, loss of.Civitas, by Diffareatio, and we may assume by Mancipatio. It is - a legitimate consequence that the wife could not divorce her husband, though her hus­band might divorce her, and if we assume that the marriage accompanied by the cum conventione was originally the only form of marriage (of which, however, we believe, there is no proof) the state­ment of Plutarch [divortium] that the husband alone had originally the power of effecting a di­vorce, will consist with this strict legal deduction. It is possible, however, that, even if the marriage cum conventione was once the only marriage, there might have been legal means by which a wife in

MATRIMONIUM.

manu could be released from the manus ; for the will alone would be sufficient to release her from the marriage. In the time of Gaius (i. 137), a woman, after the repudium was sent, could de­mand a remancipatio.

When there was no conventio, the woman re­mained a member of her own familia: she was to her husband in the same relation as any other Roman citizen, differing only in this that her sex enabled her to become the mother of children who were the husband's children and citizens of the state, and that she owed fidelity to him so long as the matrimonial cohabitation continued by mutual consent. But her legal status continued as it was before : if she was not in the power of her father, she had for all purposes a legal personal existence, independently of her husband, and consequently her property was distinct from his. It must have been with respect to such marriages as these, that a great part at least of the rules of law relating to Dos were established ; and to such marriages all the rules of law relating to marriage contracts must have referred, at least so long as the marriage cum conventione existed and retained its strict character.

When marriage was dissolved, the parties to it might many again ; but opinion considered it more decent for a woman not to marry again. A woman was required by usage (mos) to wait a year before she contracted a second marriage, on the pain of Infamia.

At Rome, the matrimonium juris civilis was originally the only marriage. But under the in­fluence of the Jus Gentium, a cohabitation be­tween Pcrcgrim, or between Latini, or between Peregrin! and Latini and Ilomani, which, in its essentials, was a marriage, a consortium omnia vitae with the affectio maritalis, was recognised as such ; and though such marriage could not have all the effect of a Roman marriage, it had its general effect in this, that ..the children of such marriage had a father. Thus was established the notion of a valid marriage generally, which mar­riage might be either Juris Civilis or Juris Gentium. Certain conditions were requisite for a valid mar­riage generally, and particular conditions were ne­cessary for a Roman marriage. In the system of Justinian, the distinction ceased, and there re­mained only the notion of a valid marriage gene­rally ; which is the sense of Justae nuptiae in the Justinian system. This valid or legal marriage is opposed to all cohabitation which is not marriage ; and the children of such cohabitation have no father. (Puchta, Inst. iii. § 287.) [infamia.]

The above is only an outline of the Law of Marriage, but it is sufficient to enable a student to carry his investigations farther. [G. L.]

It remains to describe the customs and rites which were observed by the Romans at marriages (ritits nuptiales or nuptiarwn solemnia justa, rci vo^jn^o^va, t&v 7a/xwj/). After the parties had agreed to marry and the persons in whose potestas they were had consented, a meeting of friends was sometimes held at the house of the maiden for the purpose of settling the marriage-contract, which was called sponsalia, and written on tablets (tabu-* lae legitimae}) and signed by both parties. (Juven. Sat. ii. 119, £c., vi. 25, 200 ; Gellius, iv. 4.) The woman after she had promised to become the wife of a man was called sponsa, pacta, dicta, or sperata, (Gell. L c.; Plaut. Trinum. ii. 4. 99 ; Nonius, iv. p, 213.) From Juvenal (Sat. vi. 27) it appears