MARRIAGE, ROMAN. The right conception of the Roman Institution of marriage and of its legal consequences is essential to enable us to approximate to a proper understanding of the old Roman polity.
Children were in the power of their father [Ens:winno] only when they were the offspring of a legal marriage (justn nuptim, or justum matrimonium). The cases of legitimation and adoption need not be considered here. To constitute such a legal marriage there must be between the parties connubium, 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 (ancilla) there was no connubium, and consequently 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. Various degrees of consanguinity, as the relation of parent and child, prevented conssbieas between parties in such a relation. After the Emperor Claudius had married Agrippina, his brother's daughter, such relation. ship was no longer an impediment to a legal marriage ; but the license was carried no further than was warranted by the decree of the senate, and the marriage of an uncle with his sister's daughter remained, as before, an illegal union. (Tacit., Annal.; xii. 7 ; Gains, i. a. 62.) Further, to constitute a legal marriage, the two parties must be of sufficient bodily maturity ; both parties also must consent, if they are capable of giving a legal consent (aid juris); or if not, their parents must consent.
The oeremonial parts of the marriage were of three kinds, by any one of which the wife was said to come into the hand of the husband (in =num). and to occupy the legal relation of a daughter. A woman who lived for one year with a man without interruption, became his wife by virtue of this cohabitation (uses). As in the case of all move.
ablee, by the laws of the Twelve Tables, one year's enjoyment of a thing transferred the ownership of it, so by one year's uninterrupted cohabitation the husband acquired that interest in the wife which was the result of complete marriage. 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 enactments, 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 Fkamen Dlalis, could be held only by those who were born of parents who had been married by the ceremony of Confarreatio. (Gains, 1. 112 ; Tacit., Ann.,' Iv., 16.) The Coemptio was, in form, a sale (mancipatio) before five witnesses. [Matictriusti The Coemptio might be made either between a woman and her intended husband, in which case she became, hi contemplation of law, his daughter, or between a woman and is stranger (fiduche causal, which was a necessary legal process in case is woman wished to change one guardian for another, or to acquire the privilege of making a will. For until the senatus comultum passed In the time of Hadrian no woman couldlinake a testamentary disposition (with the exception of certain privileged persons), unless she had contracted the Comptio, that is, had been sold, and then resold and manumitted. The Coemptio, being effected by mancipatio, worked a legal change of status (` Dig.; 4. 5. 1), or diminutio eapilis ; and it was the least of the three kinds of diminsisio capitis, or that by which a person underwent no change in , his civil capacity, except the being transferred into another family. (Paulus, Dig.; 4. 5. 11.) This explanation will render intelligible the passage of Cicero on the testamentary power of women (' Topic.; 4), taken in connection with Gains (L § 115, &c.). The essays of Hoffmann and Savigny, in the Zeitschrift fur Geschichtlicbe Reclatswissenschaft; vol. ill., p. 309, &c., may also be read with advantage.