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must be led to her husband's home, and married either by letters sent from the man, or by a proxy, in which events the husband's presence was sufficiently proved. For these reasons, says Ortolan, who is the chief holder in our times of the real contract view, we must deny that it is a consensual contract, but hold it to be a real one. Again, there must be a delivery of the woman over to her husband, which delivery of possession was a necessary element in real contracts. Savigny holds that it is not a contract at all, but is rather a transfer of dominion over human beings, and, as such, paralleled by adoption, emancipation, and the like. This theory, while being very applicable to the older marriages when the wife became in manum viri, has less point with reference to the later marriages, when the wife had greater independence both of person and of property.
We now come to the definition of marriage. Neither Ulpian nor Gaius venture on a definition of this state, and Paulus and Modestinus are the first to supply us with one. True that Ulpian tries to define connubium, by saying that it is a “ facultas uxoris jure ducendæ,” which is more of a statement than a definition. Paulus, in the “ Institutes of Justinian,"
Nuptiæ sive matrimonium est viri et mulieris conjunctio, individuam vita consuetudinem continens.” Modestinus, in the “ Digest,” † says, “Nuptia sunt conjunctio maris et femine, et omnis vitæ consortium, divini et humani juris communicatio.” With these two definitions before us, we may say that the Roman conception of marriage was a tie which was to endure for an indefinite period, and not a mere temporary cohabitation (concubinatus). The wife was to be placed on a position in society equal to that of her husband; she was to be regarded as the mother of his household, as he was its father. The communicatio humani juris implies that she was to have an equal right of appeal to the protection of the law with her husband, whether as
» * tells us,
Book I., Title ix , sec. i.
+ Book XXIII., Title ii., sec. i.
against him or third parties, whether she were in manum viri, or sui juris, or dependent on her agnatic guardians.
The next question before our notice is, how was this tie brought about? By what ceremonies?
Was plain consent, nudus consensus, the sole essential ingredient to notify to the world in general that a man and a woman agreed to live together ? Were confarreatio, coemptio, and usus marriage ceremonies ? Although it is an accepted fact that, as nations progress, their early complicated legal forms tend to simplify themselves, it is yet too much to say that no extrinsic evidence, other than mere cohabitation, was necessary to prove satisfactorily that a man and a woman had agreed to live together, from which union fowed many important legal results. We hold to our early definition of marriage, in which it is stated that it must be witnessed by some social, or religious, or legal ceremony. A marriage must have some attesting fact, whether it be a friendly gathering, or a benediction from a minister of religion, or the intervention of the law in regulating the property of the spouses. Marriage in Roman law, we are tolerably certain, was evidenced by some sort of formality or other; but neither confarreatio, coemptio, nor usus was a marriage ceremony, quâ marriage ceremony cementing the nuptial tie, for they bear within themselves internal marks that they could not have been so used. To begin with the oldest, and for that reason the most solemn and complicated formality, confarreatio. This, in the earlier and more glorious times of the Roman republic was reserved for the patrician caste, and from its expensive formalities came within reach only of the wealthier portion of the patriciate. It was inseparably bound
with pagan worship, and when paganism became effete, it disappeared with it. Thus, confarreatio was not a ceremony common to all classes (but regular nuptial rites obtaining in nations are alike for all in kind, though in particular stations of life they may differ
in degree), and at a comparatively early period had died out. Coemptio was the fictitious sale of a woman to a man, who purchased her in the presence of five witnesses, and of one who was called the libripens, or medium of the purchase and sale. This process was not confined to the bringing of the wife in manum viri, but was extended to the liberation of the heiress from the onerous religious duties attaching to her hereditas, and to the emancipation of the female from the power of her guardians. Can a ceremony, which is used alike to enslave and liberate a woman, by which a woman cohabiting with a man as his uxor,* and not concubina, can be brought under his power, entitling her to the epithet of materfamilias, be strictly called a marriage rite ?
The third and last, usus, was the unbroken cohabitation of a woman with a man for a year. The results of usus were not settled until after the lapse of a year; and if a woman was married to a man, and lived with him for a whole year without availing herself of the right of absenting herself for three nights in the year, she was not more married to him at the expiration than at the commencement of that period, but she passed completely into his power and became to him in loco filiæ.t An uninterrupted living together for a no less period than a whole year cannot be construed in any sense to imply a marriage ceremony. Confarreatio, coemptio, and usus were modes of contracting a marriage with a particular result-the subjection of the wife to the husband's power—but had nothing to do with the actual marriage contract or the ceremonies attesting the contract; though at times the first two may no doubt have served as adjuncts to the other rites.
We have now to decide whether Roman marriage required
An uxor was a regularly married woman, but not under the power of her husband, otherwise she would have been called matrona or materfamilias.
+ The children born after the first year were not more legitimate than any child born within the first.
anything for its formation but plain consent. Warnkoenig says,* “ marriage is contracted without any solemnity, but with bare consent if it stands on a basis of marital affection. Whence the following expression, consent, not cohabitation, makes a marriage.' Neither the authority of a magistrate, nor the priestly benediction is requisite. However, among persons of high rank marriage is never celebrated except with the addition of instruments of dower.” The consensus of the contracting parties, and of those in whose power they were, was of course a necessary ingredient in, but not the sole qualification of, marriage. If there was no need of any ceremony, religious, legal, or social, how was the maritalis affectio (on which so much stress is laid) made known at any rate in the marriages of patricians in that intermediate stage between the obsolescence of confarreatio, coemptio, and usus (granting for the sake of argument that these were marriage ceremonies) and the institution of instrumenta dotalia ; and how when these were abolished ? Again, by what means was this maritalis affectio discovered in the union of the more humbly born ? On what foundation did the law base its distinction between mere concubinage and the honourable state of marriage ? Those who hold mere consent necessary say, “ concubinam ex sola animi destinatione æstimari oportet;” and when the woman was of good birth and reputation, no doubt her union with the man was deemed to be honourable. On the other hand, when the woman was of lowly origin the contrary presumption was held. It is scarcely possible that such a nebulous and ill-defined distinction between marriage and concubinage really existed, for it must have led to innumerable frauds and law-suits. Another argument against the nudus consensus theory is the important question of legitimatio per subsequens matrimonium. If there was no real difference between concubinage and marriage, except what existed in the
* Institutiones Juris Romani Privati, Book I., sec. 173.
minds of the parties, there was no necessity for those in that particular relation of life, called concubinatus, to undergo a marriage ceremony together with a drawing up of settlements, to confer a legal position on their children. In most cases, where it was of sufficient importance to contract this subsequent marriage, the position and character of the woman must have been honourable enough to raise a presumption of marriage. Of course, we must bear in mind that concubinatus under the Roman law was not of the same kind as modern concubinage is. It had a decided legal status, and being recognized by the law was legislated for, and the position of the concubina, though less honourable than that of the uxor or matrona, was not so debased as that of the “mistress" of modern days. No unmarried man could live with two concubines, and married men were forbidden to keep any at all. This state of life was deemed immoral by successive Christian Emperors, who successfully, on the whole, eradicated it out of the laity, but it lingered later, and to a considerable extent, among the clergy, though the sweeping and reckless charges brought against them by such as Peter Damiani, Hildebrand, and others cannot be supported in their entirety. But when we look into the difference between matrimony and concubinage, we find that it is an important one; in the latter there is neither dower nor settlement, and the issue of the union do not pass into their father's power except under certain circumstances. The meaning of Ulpian's phrase, "nuptias enim non concubitus, sed consensus facit,” must be sought for in the context, and is that mere cohabitation of the man and woman is not of itself capable of creating the nuptial tie, but the consent of the proper parties that the two should live together was also necessary, as well as the surrender of the woman in such a way as to make the concubitus feasible, that is to say, the parties must have participated in some hymeneal solemnity. In addition