MARRIAGE, ROMAN. The right conception of a Roman marriage and of its legal consequences is essential to enable us to approximate to a right understand ing of the old Roman polity. It is also an important element in the history of the condition of women in civilized Europe.
Children were in the power of their father only when they were the offspring of a legal marriage (juste: nuptite), or were adopted in due form. [AnopTioN.1 To constitute such a legal marriage there must be between the parties consubium the nature of which condition is best explained by an example :—Between a Roman citizen and the daughter of a Roman citizen there was connubium, and as a consequence the children of such marriage were Roman citizens, and in the power of their father. Between a Roman citizen and a female slave (an cilia) there was no connubium, and con sequently the children which sprung from such a union were not Roman citizens. Whenever there was no connubium, the children followed the condition of the mother : when there was connubium, they followed the condition of the father. Va rious degrees of consanguinity, as the re lation of parent and child, prevented con nubium between parties in such a relation. After the Emperor Claudius had married Agrippina, his brother's daughter, such re lationship was no longer an impediment to a legal marriage ; but the licence was carried no further than the terms of the decretum of the senate warranted, and the marriage of an uncle with his sister's daughter remained, as before, an illegal union. (Tacit., Annul., xii. 7 ; Gains, i. 62.) Further, to constitute a legal marriage, the two parties must be of suf ficient bodily maturity ; both parties also must consent, if they are capable of giving legal consent (sui juris); or if not, their parents must consent.
Connubium then is the capacity to con tract a Roman marriage. No particular ceremony was necessary for marriage ; legal capacity, consent, and cohabitation were sufficient. But in order that the wife might become a member of the hus band's family, there must be either Usus, Confarreatio, or Coemptio.
A woman who lived for one year with a man without interruption as his wife, came by virtue of this cohabitation (usus) into his hand (in manum). As in the case of all movables, by the laws of the Twelve Tables, one year's enjoyment of a thing transferred the ownership of it, so by one year' s unin terrupted cohabitation the 'husband ac quired this interest in the wife. The
Twelve Tables provided that if the wife wished to avoid the legal effect of this cohabitation, it was only necessary to absent herself from her husband for three nights during the year, which would be a sufficient legal interruption to the usus. In the time of Gains this part of the old law had been partly abolished by enact ments, and had partly fallen into disuse. The Confarreatio, so called from the use of a loaf of bread on the occasion, appears to have been of the nature of a religious ceremony, and it existed in the time of Gains. It appears that certain offices, such as that of Flamen could be held only by those who were born of parents who had been married by the ceremony of Confarreatio. (Gains, i. 112; Tacit., Ann., iv. 16.) The form of divorce that applied to a marriage by Confarreation was called Diffareatiou (diffareatio).
The Coemptio was, in form, a sale (mancipatio) before five witnesses. The Coemptio might be made either between a woman and her intended husband, in which case she became, in contemplation of law, his daughter, or between a woman and a stranger (fiducite causa), which was a necessary legal process in case a woman wished to change one guardian for ano ther, or to acquire the privilege of making a will. For until the Senatusconsultum passed in the time of Hadrian, no woman could make a testamentary disposition (with the exception of certain privileged persons), unless she had contracted the Coemptio, that is, had been sold, and then resold and manumitted. The Co emptio, being effected by mancipatio, worked a legal change of status (Dig. iv. tit. 5, s. 1), or diminutio capitis ; and it was the least of the three kinds of di minutio capitis, or that by which a person underwent no change in his civil capacity except the being transferred into another family. (Paulus, Dig., iv., tit. 5, s. 11 ) This explanation will render intelligible the passage of Cicero on the testamentary power of women (Topic., 4), taken ;u connection with Gains (i. 115, &c.). The essays of Hoffmann and Savigny in the' Zeitschrift flir Geschichtliche Rechts wissenschaft,' vol. iii., p. 309, &c., may also be read with advantage.