Chapter III: The Earlier Form of Roman Marriage Law

Now let us come to the Romans, of whom we may say that it is they who have built up the marriage law of the civilized world, partly by their action as secular rulers in pagan times, partly by their action as priests in Christian times. The other modifying elements, and particularly the Hebrew and Teutonic influences, which have worked upon the marriage laws of Christendom, are of quite inferior moment.

Roman law begins with two phenomena which seem at first sight inconsistent. One is the complete subjection of the wife to the husband on the legal side, as regards both person and property. The other is her complete equality on the social and moral side, as regards her status and the respect paid to her.

In describing the nature of this subjection, one must make it clearly understood that, strictly speaking, it was not by the mere fact of marriage, that is to say, by the legal act necessary to constitute marriage, that a woman entered that position of absolute absorption into the legal personality of her husband which is so remarkable a feature of the old law. Whatever may have been the case in prehistoric times, we find that at the time when the Twelve Tables were enacted (B.C. 449) a marriage could be contracted without any forms or ceremonies whatever, by the sole consent of the parties; and that, where this was the case, the husband did not acquire any power over the wife, and the latter retained whatever property she previously possessed. It was therefore not marriage _per se_ that created the power of the husband, for a woman might be legally married and not be under the marital power. But although this ‘free marriage,’ as we may call it (the term is not Roman, but invented by modern jurists), was legally possible, the custom, and in old days the almost invariable custom, of the people was to add to the marriage a ceremony not essential to its validity as a marriage, but one which had important legal consequences. We may safely assume that there was originally no true marriage without the ceremony, but at the time of the Twelve Tables this was no longer the case. The ceremony created a relation which the Romans called Hand (_manus_), and brought the wife into her husband’s power, putting her, so far as legal rights went, in the position of a daughter (_filiae loco_). It gave the husband all the property she had when she married. It entitled him to all she might acquire afterwards, whether by gift or by her own labour. It enabled him to command her labour, and even to sell her, though the sale neither extinguished the marriage nor made her a slave, but merely enabled the purchaser to make her work, while still requiring him to respect her personal rights[162]. In compensation for these disadvantages the wife became entitled to be supported by her husband, and to receive a share of his property at his death, as one of the ‘family heirs’ (_sui heredes_), whom he could disinherit only in a formal way. She had by coming under his Hand passed out of her original family, and lost all right by the strict civil law to share in the inheritance of her father.

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Footnote 162:

Some writers doubt whether this power of sale existed, and refer to a
supposed ‘law of Romulus’ mentioned by Plutarch which devoted to the
infernal gods whoever sold his wife. But the balance seems to incline
in favour of the existence of the power.

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There were two forms of ceremony by which this power of the Hand could 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.

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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.

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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.

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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.

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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.