Chapter V: Later Marriage Law: Personal Relation

OF THE CONSORTS.

The following points deserve to be noted as characterizing the Roman view.

The act whereby marriage was contracted was a purely private act. No intervention of any State official, no registration or other public record of any sort was required. The two parties, and the two parties only, were deemed to be concerned[168].

-----

Footnote 168:

Where either party was subject to the paternal power of his or her
father (or grandfather), the consent of the father (or grandfather)
(or both) was required, though in a few specified cases it might be
either dispensed with or compelled. This was a consequence of the
Roman family system. It was irrespective of the age of bride or
bridegroom.

-----

The act was a purely civil act, to which no religious or ecclesiastical rite was essential either in heathen or in Christian times. There were indeed what may be called decorative ceremonies, some of which we find mentioned in poems like the famous Epithalamium of Catullus, but they had no more to do with the legal nature and effect of the matter than has the throwing of old shoes or rice at a modern English wedding.

The act required no prescribed form. It consisted solely in the reciprocally expressed consent of the parties, which might be given in any words, or be subsequently presumed from facts. ‘Marriage is contracted by consent only’ (_nuptiae solo consensu contrahuntur_) is the invariable Roman maxim. Even the conducting of the bride to the bridegroom’s house, which has sometimes been represented as necessary[169], seems to have been regarded rather as evidence needed in certain cases than as essential to the validity of the act[170]. A generally prevalent usage made a formal betrothal (_sponsalia_) precede the actual wedding. But the betrothal promise created no legal right. No action lay upon it, such as that which English and Anglo-American law unfortunately allows to be brought for breach of promise of marriage. In early times formal and binding stipulations seem to have been often made on each side between the bridegroom and the father (or other male relative) of the bride for the giving and receiving of the bride; and if the promise were broken without sufficient cause, an action lay against the party in fault for the worth of the marriage[171]. This, however, disappeared. Under the influence of a more refined sentiment, not only could no promise of marriage be enforced, but if the parties made a contract whereby each bound him or herself to the other in a penal sum to become payable in case of breach, such a provision was held to be disgraceful (_pactum turpe_) as well as invalid. This was the law of later republican and imperial times. Betrothal had, however, some legal effects. It entitled either of the betrothed parties to bring an action for an injury (of an insulting nature) offered to the other. It rendered any one infamous who being betrothed to one person contracted betrothal to another. It entitled either party, if the espousal was broken off before marriage, to reclaim whatever gifts he or she might have bestowed upon the other.

-----

Footnote 169:

The Emperor Majorian (A.D. 455-461) is said to have issued a
constitution for the Western Empire, making the creation of a _dos_
essential to the validity of a marriage: but this provision, which can
hardly have been intended to be general, seems to have never taken
effect. The Western Empire was then in the throes of dissolution.

Footnote 170:

See Paul., _Sent. Recept._ xix. 8; _Dig._ xxii. 2. 5. The suggestion
which may be found in some modern writers that Marriage fell within
the class of the contracts created by the delivery of an object (the
so-called Real Contracts), has no Roman authority in its favour, and
is indeed based on a misconception of the nature of those four
contracts, in all of which the obligation created is for the restoring
of the object delivered. Marriage is assuredly not a bailment.

Footnote 171:

This was at any rate a usage among the Latins; but how far in Rome
seems doubtful.

-----

As regards personal status, the wife acquired that of her husband (unless either had been formerly a slave), and his domicil became hers. In the old days of Hand power she had taken the name of his _gens_, but now she retained her own, besides her personal ‘first name’ (_praenomen_) (_e.g._ Tertia)[172]. Each spouse being interested in the character and reputation of the other, he could sue for damages if any insult was offered to her, she for insult to him. He is bound to support her in a manner suitable to their rank, whatever her private means may be. Though each can bring an action against the other, the action must not be one which affects personal credit and honour (_actio infamans_), and hence, though each has his and her own property, neither can proceed against the other by a civil action of theft, even if the property seized was seized in contemplation of a divorce[173]. It need hardly be added that if the wife’s father, or grandfather, were living, she would remain, unless she had been emancipated, subject to the paternal power, being for all legal purposes a member of her original family and not of her husband’s. But the person in whose power she is cannot (at least in imperial days) take her away from her husband. Antoninus Pius forbade a happy marriage to be disturbed by a father; and in the third century (perhaps earlier) the husband could proceed by way of interdict to compel a father to restore his wife to him[174].

-----

Footnote 172:

Under the Empire we usually find women using two names, from their
father’s _gens_ and family (e.g. _Caecilia Metella_). Sometimes, it
would seem, the name of the father’s _gens_ was followed by one taken
from the mother (e.g. _Iunia Lepida_, _Annaea Faustina_). The subject
is fully discussed by Mommsen, in his _Römisches Staatsrecht_.

Footnote 173:

A special action (_rerum amotarum_) was given in this case. Some
jurists held that the joint enjoyment of household goods made the
conception of Theft inapplicable to a wife’s dealings, however
unauthorized, with her husband’s property. _Dig._ xxv. 2. 1.

Footnote 174:

_Dig._ xliii. 30. 2.

-----