Chapter X: Some Other Features of Roman Marriage Law

Before leaving this part of the subject, a few minor curiosities of the Roman marriage law deserve to be mentioned. From the time of Augustus there were in force, during some centuries, various provisions[188] designed to promote marriage and the bearing of children by attaching certain burdens or disabilities to the unmarried and childless. Most of these, being opposed to the new sentiment which Christianity fostered, were swept away by the Emperor Constantine and his successors. Others fell into desuetude, so that before Justinian’s time few and slight traces were left of statutes that had exerted a great influence in earlier days, though it may be doubted whether they did much to promote morality. The tendency of Christian teaching rather was in favour of celibacy, when adhered to from ascetic motives; and the passion for a monastic life which marked the end of the fourth century told powerfully in this direction, especially in the eastern half of the empire.

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Footnote 188:

Especially those contained in the _lex Iulia et Papia Poppaea_.

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Similar sentiments worked to discourage second marriages, which earlier legislation had favoured, though the widow who remarried within the year of mourning (originally of ten, ultimately of twelve months) suffered infamy, by a very ancient custom, as did the person who wedded her. The marriage was, however, valid. The Christian emperors punished the consort who married again by debarring him or her from the full ownership of any property which came to him or her through the first marriage (_lucra nuptialia_), while leaving him (or her) the usufruct in it. But this applied only where there were children of the first marriage living, and was mainly prompted by a desire to protect their interests against a step-parent. The ancient world was singularly suspicious of step-mothers.

The rules with regard to prohibited degrees of matrimony varied widely from age to age. In early Rome even second cousins were forbidden to intermarry. There was in those days a usage permitting near relatives, as far as second cousins, to kiss one another without incurring censure (_ius osculi_). Plutarch oddly explains the permission as grounded upon the right of the male relatives to satisfy themselves in this way that the ladies of the family had not tasted wine. But obviously the wholesome habits of a simple society allowed a familiar intercourse among kinsfolk just as far, and no farther, as the prohibition of marriage between them extended[189]. Towards the end of the republican period, however, we find that even first cousins might marry, probably by custom, for we hear of no specific enactments. Tacitus (_Ann._ xii. 6) refers to the practice as well established. This freedom lasted till the Emperor Theodosius the First, who forbade their marriage under pain of death by burning. Though the penalty was subsequently reduced, marriages of first cousins continued to be forbidden and punishable in the western half of the empire, while in the eastern they were made permissible, and remain so in the system of Justinian. The marriage of uncle or aunt with niece or nephew had been prohibited, though apparently by no statute, until the Emperor Claudius, desiring to marry his brother’s daughter Agrippina, obtained a decree of the Senate declaring such a marriage legal[190]. So it remained for a time, though the marriage of an uncle with a sister’s daughter, or of an aunt with a nephew, was still deemed incestuous. Christianity brought a change, and the law of Claudius was annulled by the sons of the Emperor Constantine. It was also by these sovereigns that marriage with a deceased wife’s sister, or a deceased husband’s brother, which had previously been lawful, though apparently regarded with social disapproval, was expressly forbidden[191]. This rule was adopted by Justinian, in whose _Codex_ it finds a place[192].

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Footnote 189:

It is a curious instance of the variance of custom in this respect,
that after it had in England become unusual for cousins of different
sexes to kiss one another, the practice remained common in the simpler
society of Scotland and still more in that of Ireland.

Footnote 190:

Tac. _Ann._ xii. 5-7.

Footnote 191:

Many other prohibitions of marriages applying to persons holding
official relations, or to persons of widely different rank, or to
cases where adoptive relationships come in, need not be mentioned, as
they have no longer any great interest.

Footnote 192:

_Cod. Theod._ iii. 12, 2 sqq.; _Cod. Iustin._ v. 5. 5 and 8.

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Besides the full lawful marriage of Roman citizens, to which alone the previous remarks have referred, there were two other recognized relations of the sexes under the Roman law[193]. One of these was the marriage of a citizen, whether male or female, with a non-citizen, _i.e._ a person who did not enjoy that part of citizenship which covered family rights and was called _connubium_. This was called a natural marriage (_matrimonium naturale_, _matrimonium iuris gentium_) as existing under the Law of Nature or Law of the Nations (_ius gentium_), as contradistinguished from the peculiar law of Rome (_ius civile_)[194]. It was a perfectly legal union, and the children were legitimate: as of course were the children of two non-citizens who married according to their own law. When Roman citizenship became extended to all the subjects of the empire, the importance of this kind of marriage vanished, for it could thereafter have been applicable (with some few exceptions) only to persons outside the Empire, and marriages with such persons, who were _prima facie_ enemies, were forbidden.

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Footnote 193:

The connexion of two slaves, called _contubernium_, was not deemed a
legal relation at all, and children born from it were not legitimate.
So also a free person could not legally intermarry with a slave.

Footnote 194:

See Essay XI, p. 128.

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The other relation was that called concubinage (_concubinatus_). It was something to which we have no precise analogue in modern law, for, so far from being prohibited by the law, it was regulated thereby, being treated as a lawful connexion. It is almost a sort of unequal marriage (and is practically so described by some of the jurists) existing between persons of different station—the man of superior rank, the woman of a rank so much inferior that it is not to be presumed that his union with her was intended to be a marriage. It leaves the woman in the same station in which it found her, not raising her, as marriage normally does, to the husband’s level. The children born in such a union are not legitimate; but they may require their father to support them, and are even allowed by Justinian, in one of his later enactments (_Novella_ lxxxix), a qualified right of intestate succession to him. They of course follow their mother’s condition, and they have a right of inheriting her property. Even here the monogamic principle holds good. A man who is married cannot have a concubine, nor can any man have more than one concubine at a time. Though regarded with less indulgence by the Christian emperors than it had been by their predecessors, it held its ground in the Eastern Empire, even under Justinian, who calls it a ‘permitted connexion’ (_licita consuetudo_), and was not abolished till long after his time by the Emperor Leo the Philosopher in A.D. 887. In the West it became by degrees discredited, yet doubtless had some influence on the practice of the clergy, the less strict of whom continued to maintain irregular matrimonial relations for a great while after celibacy had begun to be enforced by ecclesiastical authority.

Children born in concubinage may be legitimated by the subsequent marriage of their parents, according to a rule first introduced by Constantine, and subsequently enlarged and made permanent by Justinian (_Cod._ v. 27, 5 and 6; _Nov._ xii. 4; _Nov._ lxxxix. 8); a rule of great importance, which was long afterwards introduced into the Canon Law by Pope Alexander III in A.D. 1160, and has held its ground in the modern Roman law of continental Europe, as it does in the law of Scotland to this day. The bishops, prompted by the canonists, tried to introduce it in England, but were defeated by the opposition of the barons, who at the great council held at Merton in 20 Henry III (A.D. 1235-6) refused their consent in the famous words, ‘We will not change the laws of England which hitherto have been used and approved[195].’ Nevertheless such power of legitimating the children of a couple born before their legal marriage seems to have been part of the ancient customs of England before the Conquest. The children were at the wedding placed under a cloak which was spread over the parents, and were from this called in Germany, France, and Normandy, ‘mantle children[196].’

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Footnote 195:

‘Ad breve Regis de bastardia utrum aliquis natus ante matrimonium
habere poterit hereditatem sicut ille qui natus est post. Responderunt
omnes Episcopi quod nolunt nec possunt ad istud respondere, quia hoc
esset contra communem formam Ecclesie. Ac rogaverunt omnes Episcopi
Magnates ut consentirent quod nati ante matrimonium essent legitimi
sicut illi qui nati sunt post matrimonium quantum ad successionem
hereditariam quia Ecclesia tales habet pro legitimis; et omnes comites
et barones una voce responderunt quod nolunt leges Anglie mutare que
usitatate sunt et approbate.’ 20 Henr. III, _Stat. Mert._

Footnote 196:

Pollock and Maitland, vol. ii. p. 397. I have heard of the cloak
custom as existing in Scotland down almost to our own time.

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I have already dwelt upon the most striking feature of the branch of legal history we have been tracing, the comparatively sudden passage from a system of extreme strictness—under which the wife’s personality, with her whole right of property, became absolutely merged in that of her husband—to a system in which the two personalities remained quite distinct, united only by the rights which each had in matrimonial property, rights which were however not rights of joint-management, but exerciseable (subject to limitations) by the husband alone so long as the marriage lasted, while the reversion was secured to the wife or her relatives. It is hardly less noteworthy that these two contrasted systems did for a considerable time exist side by side; and for a century, or perhaps more, must both have been in full vigour, though the freer system was obviously gaining ground upon the older and more stringent one.

Another fact, though more easily explicable, is also worth noting. In its earlier stages the Roman marriage bore a religious character, for we can hardly doubt that in primitive times Confarreation, the old patrician form with the sacrifice and the holy cake, was practically universal among the original citizens, before the _plebs_ came into a separate and legally recognized existence. Hence perhaps it is that marriage is described, even when that description had ceased to have the old meaning, as a ‘sharing of all rights, both religious and secular.’ In its middle period, which covers some five centuries, it was a purely civil relation, not affected, in its legal aspects, by any rules attributable to a theological or superstitious source. But when Christianity became the dominant faith of the Empire, the view which the Gospel and the usages as well as the teaching of the Church had instilled began thenceforward to influence legislation. These usages did not indeed, down till the eighth century, transform the fundamental conception of marriage as a tie formed solely by consent, and needing the intervention neither of State nor of Church. But they worked themselves into the doctrines of the Church in such wise that, in later days, they succeeded in making matrimony so far a sacred relation as to give it an indissoluble character, and not only restricted the circle of persons between whom it could lawfully be contracted, but abolished the power of terminating it by the mere will of the parties.