Chapter 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.

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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).

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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].

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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.

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