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to these more dry reasons, it is not probable that among such a people as the Italians, surrounded by bright skies and a laughing country, marriage, which is always deemed to be a fitting occasion for public display, should have been entered into by the simple and bare consent of the contracting parties. Conducting the bride to the marriage bed, the ceremony of making her free of her husband’s house by fire and water—this last in earlier times—the drawing up of dotal settlements, and in the latter Empire marriage before an attesting priest must at different periods have served to witness the consent of the parties that they twain should be one flesh. Then, lastly, there was another ceremony, combining both the social and legal element, the dednctio in domum mariti, or the leading of the bride to the home of her husband as the headquarters, as it were, of their married life. Where the dom-us mariti was there also was the domicilinm matrimonii ; the relations of the wife to the municipal magistrate, a matter of vital importance, depended upon the locality of the home of her husband. This dednctio in domum, a survival perhaps of the old matrimonial theory that the husband stole and violently withdrew his future wife from her family, served not only as an open notification to neighbours of the union of husband and wife, and as such was a legal ceremony to be performed in all marriages, but also by holiday displays to give an opportunity to friends and relatives to testify their sympathy and join in the festivities.
We will now consider between whom marriage might be celebrated. It is of use to inquire into this, because, among other reasons, it is demonstrative of that class-spirit which was so dominant in Rome, and which was only broken up by drains on her original population, to compensate for which the fictitious character of Roman citizen was given to aliens. To create a regular, or civil, marriage, ju-stunt matrimoninm, which brought the children born in it under their father’s power, there were three requisites——capacity, con
sent, and evidence of consent. Under the head of capacity are to be reckoned pubertas and jus connubii. Consent includes the consent, under certain circumstances, of the contracting parties, of their parents or guardians, and of those whose family will be increased by the marriage. In Roman law marriage for a long time was looked upon as of two kinds, civil and gentile. The former was at first confined to Roman citizens only, then extended to privileged Latins and aliens; the latter could be contracted by all (even by Roman citizens with aliens) except slaves, whose connection* had no legal status. Civil marriage brought the children sub patria potestate, but neither Gentile marriage, nor contubermmn, nor concubinatus had any such effect.
The jus connubii, which may be translated as “ no disqualification for marriage,” was a very important element in matrimonial law at Rome. By pursuing a negative course of inquiry, we shall learn what persons had the right of intermarriage. There were two chief divisions of disqualification, legal and natural. Under legal comes (a.) Inequality of birth, the removal of which disqualification may be briefly sketched.
Previously to the Lex Canuleia there was no jus connubii between patricians and plebians. Down to the lex Papia at Poppaea, ingenui were under a like incapacity to contract a civil marriage with libertini; but by this law, the chief scope of which was to further the increase of marriage among the wealthy and luxurious Romans, all ingenui, except those of senatorial rank, were allowed to intermarry with libertime, provided that they were not prostitutes, actresses, or women scarred with the brand of infamy. To meet his own case, justinian (his wife Theodora had been an actress) repealed the law preventing a man, whatever
‘This was called cuntubcrnium, and presents a specimen of anomaly in Roman law, which system refused to recognise its legal existence, but at the same time forbade it to be incestuous.
his social rank might be, from marrying one who had formerly practised the ars ludicra. By the 117th Novel, the same Emperor removed all matrimonial disabilities from those who were styled humiles abjectzeve personaz, thus cutting down the last remaining barriers erected by the old classspirit of Rome. (b.) The next disqualification is madness while it lasted. (0.) Physical incapacity, such as exists in the case of eunuchs, born or made, and the case of those who by some bodily defect cannot attain to puberty. (d.) Another disqualification rested on social reasons. A guardian could not marry his ward until she attained the age of 26, except she were betrothed or given to him by her father. An adulterer could not marry his accomplice, nor the ravisher the woman he violated. (e.) A further disqualification is based on political reasons. A governor of a province is prevented from marrying a woman born or residing in the province during his tenure of office, lest he should gain too much power, or be influenced by her and so neglect the interests of Rome. A Christian could not marry a jewq; this no doubt arose from the hatred evinced by the early Christians for the betrayer of their Lord.
The disqualification from natural causes is the bar placed by relationship or aihnity. The broad and general rules are as follows :—No one could marry any one standing to him in the place of an ascendant or descendant; and collaterals up to the fourth degree, and afiines could not intermarry. These restrictions varying with the times apply equally to those relationships arising out of adoption ; but when this latter tie was broken by emancipation, they did not hold good, except between the adopted child and its adoptive ascendants. From the very earliest any connection between direct ascendants and descendants was regarded as incestuous; but in the earlier Empire the connection of collateral ascendants and descendants was not so regarded. This was introduced to suit the case of Claudius, who desired to marry his niece, Agrippina, his brother’s daughter. He caused the servile senate to declare such marriage legal, and his example was sufficiently imitated by the nobility at Rome. The intermarriage of collaterals within the sixth degree was at one time prohibited, but for no better reason apparently than that there were names for such relatives. This restriction was reduced to the fourth degree (this prevented first cousins from marrying); and then to the third degree, but with this anomalous distinction, that while it was incest for an aunt to marry her brother’s or sister’s son, or for an uncle to marry his sister’s daughter, he might marry his brother’s daughter. This otherwise incomprehensible rule is explained by the Emperor Claudius’s case. ‘When Christianity became the religion of the Empire, such a connection was deemed hostile to its spirit and doctrine, and was therefore abolished by Constantine. The law as to the intermarriage of first cousins varied with different Emperors, until justinian confirmed a former constitution which had removed all obstacles. Afiinity, or the relationship into which each of the married pair enters with the members of their respective families, acted as a bar up to certain grades. Accordingly a man could not marry, even if he had wished it, his mother-in-law, or daughter-in-law, or stepdaughter or stepmother. The much vexed question as to whether a man could marry his deceased wife’s sister, and a woman her deceased husband’s brother exercised the minds of lawyers and philosophers even in those days ; for these afiines were permitted to marry each other in the time of Gaius, and for many years afterwards, but Christianity once more altered the marriage law, and Constantine issued a constitution in which he forbade this union, which was subsequently ratified by ]ustinian’s legislation.
\Ve have endeavoured in the preceding pages to give a brief general outline of what a Roman marriage was, and how it might be celebrated, but have made no reference to any results of the tie, which would furnish matter for separate discussion. We have now to consider the English marriage.
English Law.—It is to be feared that there is a great deal of prejudice existing in England on this subject, and that it is combined with considerable ignorance. Few persons, notwithstanding that the majority have the word on their lips every day of their life, could give a satisfactory definition of the term, and argue out reasonably from what point of view they regard the state of matrimony. We, as a nation, are not given to the thinking out of legal ideas; we desire to obey the laws if they do not gall us too much ; but what are the underlying principles and causes of any particular law we do not always deign to consider. For these reasons we have
a mass of conflicting undigested theories floating about, out I
of which each individual can choose according to his own particular line of thought, and which he can stoutly maintain because his adversary has no more firm stand point of argument than himself. As a specimen of this we may cite the versatile author of “ No Name,” and “ Man and Wife.” Can any one but a poet, writing under the impulse of his feelings, reconcile the general scope of these two books? In the former we are told that Nora and Margaret Vanstone are left penniless and without a name, because their father and mother had not had a religious ceremony read over them before the births of the two girls. This is more than a covert thrust at a religious and complicated ceremony; while in the latter work the marriage law of Scotland receives equal castigation with modern athleticism; and this because Scots law allows the tie to be contracted merely before competent witnesses, and not necessarily before a priest or other authorised officer.
Marriage, in English as well as Roman law, is called a contract, because it shares in common with ordinary commercial transactions two of the chief requisites of a contract, namely, a mutual agreement of the wills of two parties (to live together), and the notification to each other by the