Chapter 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.

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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.’

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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.

These principles have a special interest as being the latest word of ancient civilization before Christianity began to influence legislation. They have in them much that is elevated, much that is attractive. They embody the doctrines which, after an interval of many centuries, have again begun to be preached with the fervour of conviction to the modern world, especially in England and the United States, by many zealous friends of progress, and especially by those who think that the greatest step towards progress is to be found in what is called the emancipation of woman.

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Footnote 183:

‘Libera matrimonia esse antiquitus placuit,’ says the Emperor Severus
Alexander in the third century. _Cod._ viii. 38. 2.

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